HOUSE BILL No. 2453
AN ACT concerning health and healthcare; relating to dentists and dental hygienists;
enacting the dentist and dental hygienist compact to provide interstate practice
privileges for dentists and dental hygienists.
Be it enacted by the Legislature of the State of Kansas:
Section 1. This section shall be known and may be cited as the
dentist and dental hygienist compact.
SECTION 1—TITLE AND PURPOSE
The purposes of this compact are to facilitate the interstate practice
of dentistry and dental hygiene and improve public access to dentistry
and dental hygiene services by providing dentists and dental hygienists
licensed in a participating state the ability to practice in participating
states in which they are not licensed. The compact does this by
establishing a pathway for a dentists and dental hygienists licensed in a
participating state to obtain a compact privilege that authorizes them to
practice in another participating state in which they are not licensed.
The compact enables participating states to protect the public health
and safety with respect to the practice of such dentists and dental
hygienists, through the state's authority to regulate the practice of
dentistry and dental hygiene in the state. The compact:
(a) Enables dentists and dental hygienists who qualify for a
compact privilege to practice in other participating states without
satisfying burdensome and duplicative requirements associated with
securing a license to practice in those states;
(b) promotes mobility and addresses workforce shortages through
each participating state's acceptance of a compact privilege to practice
in that state;
(c) increases public access to qualified, licensed dentists and
dental hygienists by creating a responsible, streamlined pathway for
licensees to practice in participating states;
(d) enhances the ability of participating states to protect the
public's health and safety;
(e) does not interfere with licensure requirements established by a
participating state;
(f) facilitates the sharing of licensure and disciplinary information
among participating states;
(g) requires dentists and dental hygienists who practice in a
participating state pursuant to a compact privilege to practice within the
scope of practice authorized in that state;
(h) extends the authority of a participating state to regulate the
practice of dentistry and dental hygiene within its borders to dentists
and dental hygienists who practice in the state through a compact
privilege;
(i) promotes the cooperation of participating state in regulating the
practice of dentistry and dental hygiene within those states; and
(j) facilitates the relocation of military members and their spouses
who are licensed to practice dentistry or dental hygiene.
SECTION 2—DEFINITIONS
As used in this compact, unless the context requires otherwise, the
following definitions shall apply:
(a) "Active military member" means any person with full-time
duty status in the armed forces of the United States, including members
of the national guard and reserve.
(b) "Adverse action" means disciplinary action or encumbrance
imposed on a license or compact privilege by a state licensing
authority.
(c) "Alternative program" means a non-disciplinary monitoring or
practice remediation process applicable to a dentist or dental hygienist
approved by a state licensing authority of a participating state in which
the dentist or dental hygienist is licensed. This includes, but is not
limited to, programs to which licensees with substance abuse or
addiction issues are referred in lieu of adverse action.
(d) "Clinical assessment" means examination or process, required
for licensure as a dentist or dental hygienist as applicable, that provides HOUSE BILL No. 2453—page 2
evidence of clinical competence in dentistry or dental hygiene.
(e) "Commissioner" means the individual appointed by a
participating state to serve as the member of the commission for that
participating state.
(f) "Compact" means this dentist and dental hygienist compact.
(g) "Compact privilege" means the authorization granted by a
remote state to allow a licensee from a participating state to practice as
a dentist or dental hygienist in a remote state.
(h) "Continuing professional development" means a requirement,
as a condition of license renewal, to provide evidence of successful
participation in educational or professional activities relevant to
practice or area of work.
(i) "Criminal background check" means the submission of
fingerprints or other biometric-based information for a license applicant
for the purpose of obtaining that applicant's criminal history record
information, as defined in 28 C.F.R. § 20.3(d) from the federal bureau
of investigation and the state's criminal history record repository as
defined in 28 C.F.R. § 20.3(f).
(j) "Data system" means the commission's repository of
information about licensees, including, but not limited to, examination,
licensure, investigative, compact privilege, adverse action and
alternative program.
(k) "Dental hygienist" means an individual who is licensed by a
state licensing authority to practice dental hygiene.
(l) "Dentist" means an individual who is licensed by a state
licensing authority to practice dentistry.
(m) "Dentist and dental hygienist compact commission" or
"commission" means a joint government agency established by this
compact comprised of each state that has enacted the compact and a
national administrative body comprised of a commissioner from each
state that has enacted the compact.
(n) "Encumbered license" means a license that a state licensing
authority has limited in any way other than through an alternative
program.
(o) "Executive board" means the chairperson, vice chairperson,
secretary and treasurer and any other commissioners as may be
determined by commission rule or bylaw.
(p) "Jurisprudence requirement" means the assessment of an
individual's knowledge of the laws and rules governing the practice of
dentistry or dental hygiene, as applicable, in a state.
(q) "License" means current authorization by a state, other than
authorization pursuant to a compact privilege, or other privilege, for an
individual to practice as a dentist or dental hygienist in that state.
(r) "Licensee" means an individual who holds an unrestricted
license from a participating state to practice as a dentist or dental
hygienist in that state.
(s) "Model compact" means the model for the dentist and dental
hygienist compact on file with the council of state governments or other
entity as designated by the commission.
(t) "Participating state" means a state that has enacted the compact
and been admitted to the commission in accordance with the provisions
of this compact and commission rules.
(u) "Qualifying license" means a license that is not an encumbered
license issued by a participating state to practice dentistry or dental
hygiene.
(v) "Remote state" means a participating state where a licensee
who is not licensed as a dentist or dental hygienist is exercising or
seeking to exercise the compact privilege.
(w) "Rule" means a regulation promulgated by an entity that has
the force of law.
(x) "Scope of practice" means the procedures, actions and
processes a dentist or dental hygienist licensed in a state is permitted to
undertake in that state and the circumstances under which the licensee
is permitted to undertake those procedures, actions and processes. Such HOUSE BILL No. 2453—page 3
procedures, actions and processes and the circumstances under which
they may be undertaken may be established through means including,
but not limited to, statute, regulations, case law and other processes
available to the state licensing authority or other government agency.
(y) "Significant investigative information" means information,
records and documents received or generated by a state licensing
authority pursuant to an investigation for which a determination has
been made that there is probable cause to believe that the licensee has
violated a statute or regulation that is considered more than a minor
infraction for which the state licensing authority could pursue adverse
action against the licensee.
(z) "State" means any state, commonwealth, district or territory of
the United States of America that regulates the practices of dentistry
and dental hygiene.
(aa) "State licensing authority" means an agency or other entity of
a state that is responsible for the licensing and regulation of dentists or
dental hygienists.
SECTION 3—STATE PARTICIPATION IN THE COMPACT
(a) In order to join the compact and thereafter continue as a
participating state, a state must:
(1) Enact a compact that is not materially different from the model
compact as determined in accordance with commission rules;
(2) participate fully in the commission's data system;
(3) have a mechanism in place for receiving and investigating
complaints about its licensees and license applicants;
(4) notify the commission, in compliance with the terms of the
compact and commission rules, of any adverse action or the availability
of significant investigative information regarding a licensee and license
applicant;
(5) fully implement a criminal background check requirement,
within a time frame established by commission rule, by receiving the
results of a qualifying criminal background check;
(6) comply with the commission rules applicable to a participating
state;
(7) accept the national board examinations of the joint commission
on national dental examinations or another examination accepted by
commission rule as a licensure examination;
(8) accept for licensure that applicants for a dentist license
graduate from a predoctoral dental education program accredited by the
commission on dental accreditation, or another accrediting agency
recognized by the United States department of education for the
accreditation of dentistry and dental hygiene education programs,
leading to the doctor of dental surgery, D.D.S., or doctor of dental
medicine, D.M.D., degree;
(9) accept for licensure that applicants for a dental hygienist
license graduate from a dental hygiene education program accredited
by the commission on dental accreditation or another accrediting
agency recognized by the United States department of education for the
accreditation of dentistry and dental hygiene education programs;
(10) require for licensure that applicants successfully complete a
clinical assessment;
(11) have continuing professional development requirements as a
condition for license renewal; and
(12) pay a participation fee to the commission as established by
commission rule.
(b) Providing alternative pathways for an individual to obtain an
unrestricted license does not disqualify a state from participating in the
compact.
(c) When conducting a criminal background check, the state
licensing authority shall:
(1) Consider that information in making a licensure decision;
(2) maintain documentation of completion of the criminal
background check and background check information to the extent
allowed by state and federal law; and HOUSE BILL No. 2453—page 4
(3) report to the commission whether it has completed the criminal
background check and whether the individual was granted or denied a
license.
(d) A licensee of a participating state who has a qualifying license
in that state and does not hold an encumbered license in any other
participating state shall be issued a compact privilege in a remote state
in accordance with the terms of the compact and commission rules. If a
remote state has a jurisprudence requirement, a compact privilege will
not be issued to the licensee unless the licensee has satisfied the
jurisprudence requirement.
SECTION 4—COMPACT PRIVILEGE
(a) To obtain and exercise the compact privilege under the terms
and provisions of the compact, the licensee shall:
(1) Have a qualifying license as a dentist or dental hygienist in a
participating state;
(2) be eligible for a compact privilege in any remote state in
accordance with subsections (d), (g) and (h);
(3) submit to an application process whenever the licensee is
seeking a compact privilege;
(4) pay any applicable commission and remote state fees for a
compact privilege in the remote state;
(5) meet any jurisprudence requirement established by a remote
state in which the licensee is seeking a compact privilege;
(6) have passed a national board examination of the joint
commission on national dental examinations or another examination
accepted by commission rule;
(7) for a dentist, have graduated from a predoctoral dental
education program accredited by the commission on dental
accreditation, or another accrediting agency recognized by the United
States department of education for the accreditation of dentistry and
dental hygiene education programs, leading to the doctor of dental
surgery, D.D.S., or doctor of dental medicine, D.M.D., degree;
(8) for a dental hygienist, have graduated from a dental hygiene
education program accredited by the commission on dental
accreditation or another accrediting agency recognized by the United
States department of education for the accreditation of dentistry and
dental hygiene education programs;
(9) have successfully completed a clinical assessment for
licensure;
(10) report to the commission any adverse action taken by any
non-participating state when applying for a compact privilege and,
otherwise, within 30 days after the date the adverse action is taken;
(11) report to the commission when applying for a compact
privilege the address of the licensee's primary residence and thereafter
immediately report to the commission any change in the address of the
licensee's primary residence; and
(12) consent to accept service of process by mail at the licensee's
primary residence on record with the commission with respect to any
action brought against the licensee by the commission or a participating
state and consent to accept service of a subpoena by mail at the
licensee's primary residence on record with the commission with
respect to any action brought or investigation conducted by the
commission or a participating state.
(b) The licensee must comply with the requirements of subsection
(a) to maintain the compact privilege in the remote state. If those
requirements are met, the compact privilege will continue as long as the
licensee maintains a qualifying license in the state through which the
licensee applied for the compact privilege and pays any applicable
compact privilege renewal fees.
(c) A licensee providing dentistry or dental hygiene in a remote
state under the compact privilege shall function within the scope of
practice authorized by the remote state for a dentist or dental hygienist
licensed in that state.
(d) A licensee providing dentistry or dental hygiene pursuant to a HOUSE BILL No. 2453—page 5
compact privilege in a remote state is subject to that state's regulatory
authority. A remote state may, in accordance with due process and that
state's laws, by adverse action revoke or remove a licensee's compact
privilege in the remote state for a specific period of time and impose
fines or take any other necessary actions to protect the health and safety
of its citizens. If a remote state imposes an adverse action against a
compact privilege that limits the compact privilege, that adverse action
applies to all compact privileges in all remote states. A licensee whose
compact privilege in a remote state is removed for a specified period of
time is not eligible for a compact privilege in any other remote state
until the specific time for removal of the compact privilege has passed
and all encumbrance requirements are satisfied.
(e) If a license in a participating state is an encumbered license,
the licensee shall lose the compact privilege in a remote state and shall
not be eligible for a compact privilege in any remote state until the
license is no longer encumbered.
(f) Once an encumbered license in a participating state is restored
to good standing, the licensee must meet the requirements of subsection
(a) to obtain a compact privilege in a remote state.
(g) If a licensee's compact privilege in a remote state is removed
by the remote state, the individual shall lose or be ineligible for the
compact privilege in any remote state until the following occur:
(1) The specific period of time for which the compact privilege
was removed has ended; and
(2) all conditions for removal of the compact privilege have been
satisfied.
(h) Once the requirements of subsection (g) have been met, the
licensee must meet the requirements in subsection (a) to obtain a
compact privilege in a remote state.
SECTION 5—ACTIVE MILITARY MEMBER OR THEIR SPOUSES
An active military member and their spouse shall not be required to
pay to the commission for a compact privilege the fee otherwise
charged by the commission. If a remote state chooses to charge a fee
for a compact privilege, it may choose to charge a reduced fee or no fee
to an active military member and their spouse for a compact privilege.
SECTION 6—ADVERSE ACTIONS
(a) A participating state in which a licensee is licensed shall have
exclusive authority to impose adverse action against the qualifying
license issued by that participating state.
(b) A participating state may take adverse action based on the
significant investigative information of a remote state, so long as the
participating state follows its own procedures for imposing adverse
action.
(c) Nothing in this compact shall override a participating state's
decision that participation in an alternative program may be used in lieu
of adverse action and that such participation shall remain non-public if
required by the participating state's laws. Participating states must
require licensees who enter any alternative program in lieu of discipline
to agree not to practice pursuant to a compact privilege in any other
participating state during the term of the alternative program without
prior authorization from such other participating state.
(d) Any participating state in which a licensee is applying to
practice or is practicing pursuant to a compact privilege may
investigate actual or alleged violations of the statutes and regulations
authorizing the practice of dentistry or dental hygiene in any other
participating state in which the dentist or dental hygienist holds a
license or compact privilege.
(e) A remote state shall have the authority to:
(1) Take adverse actions as set forth in section 4(d) of this
compact against a licensee's compact privilege in the state;
(2) in furtherance of its rights and responsibilities under the
compact and the commission's rules, issue subpoenas for both hearings
and investigations that require the attendance and testimony of
witnesses and the production of evidence. Subpoenas issued by a state HOUSE BILL No. 2453—page 6
licensing authority in a participating state for the attendance and
testimony of witnesses, or the production of evidence from another
participating state, shall be enforced in the latter state by any court of
competent jurisdiction, according to the practice and procedure of that
court applicable to subpoenas issued in proceedings pending before it.
The issuing authority shall pay any witness fees, travel expenses,
mileage and other fees required by the service statutes of the state
where the witnesses or evidence are located; and
(3) if otherwise permitted by state law, recover from the licensee
the costs of investigations and disposition of cases resulting from any
adverse action taken against that licensee.
(f) (1) In addition to the authority granted to a participating state
by its dentist or dental hygienist licensure act or other applicable state
law, a participating state may jointly investigate licensees with other
participating states.
(2) Participating states shall share any significant investigative
information, litigation or compliance materials in furtherance of any
joint or individual investigation initiated under the compact.
(g) (1) After a licensee's compact privilege in a remote state is
terminated, the remote state may continue an investigation of the
licensee that began when the licensee had a compact privilege in that
remote state.
(2) If the investigation yields what would be significant
investigative information had the licensee continued to have a compact
privilege in that remote state, the remote state shall report the presence
of such information to the data system as required by section 8(b)(6) of
this compact as if it was significant investigative information.
SECTION 7—ESTABLISHMENT AND OPERATION OF THE
COMMISSION
(a) The compact participating states hereby create and establish a
joint government agency whose membership consists of all
participating states that have enacted the compact. The commission is
an instrumentality of the participating states acting jointly and not an
instrumentality of any one state. The commission shall come into
existence on or after the effective date of the compact as set forth in
section 11(a) of this compact.
(b) (1) Each participating state shall have and be limited to one
commissioner selected by that participating state's state licensing
authority or, if the state has more than one state licensing authority,
selected collectively by the state licensing authorities.
(2) The commissioner shall be a member or designee of such
authority or authorities.
(3) The commission may by rule or bylaw establish a term of
office for commissioners and may by rule or bylaw establish term
limits.
(4) The commission may recommend to a state licensing authority
or authorities, as applicable, removal or suspension of an individual as
the state's commissioner.
(5) A participating state's state licensing authority or authorities, as
applicable, shall fill any vacancy of its commissioner on the
commission within 60 days after the vacancy.
(6) Each commissioner shall be entitled to one vote on all matters
that are voted upon by the commission.
(7) The commission shall meet at least once during each calendar
year. Additional meetings may be held as set forth in the bylaws. The
commission may meet by telecommunication, video conference or
other similar electronic means.
(c) The commission shall have the following powers:
(1) Establish the fiscal year of the commission;
(2) establish a code of conduct and conflict of interest policies;
(3) adopt rules and bylaws;
(4) maintain its financial records in accordance with the bylaws;
(5) meet and take such actions as are consistent with the
provisions of this compact, the commission's rules and the bylaws; HOUSE BILL No. 2453—page 7
(6) initiate and conclude legal proceedings or actions in the name
of the commission, provided that the standing of any state licensing
authority to sue or be sued under applicable law shall not be affected;
(7) maintain and certify records and information provided to a
participating state as the authenticated business records of the
commission and designate a person to do so on the commission's
behalf;
(8) purchase and maintain insurance and bonds;
(9) borrow, accept or contract for services of personnel, including,
but not limited to, employees of a participating state;
(10) conduct an annual financial review;
(11) hire employees, elect or appoint officers, fix compensation,
define duties, grant such individuals appropriate authority to carry out
the purposes of the compact and establish the commission's personnel
policies and programs relating to conflicts of interest, qualifications of
personnel and other related personnel matters;
(12) as set forth in the commission rules, charge a fee to a licensee
for the grant of a compact privilege in a remote state and thereafter, as
may be established by commission rule, charge the licensee a compact
privilege renewal fee for each renewal period in which that licensee
exercises or intends to exercise the compact privilege in that remote
state. Nothing in this paragraph shall be construed to prevent a remote
state from charging a licensee a fee for a compact privilege or renewals
of a compact privilege, or a fee for the jurisprudence requirement, if the
remote state imposes such a requirement for the grant of a compact
privilege;
(13) accept any and all appropriate gifts, donations, grants of
money, other sources of revenue, equipment, supplies, materials and
services and receive, utilize and dispose of the same, and at all times
the commission shall avoid any appearance of impropriety or conflict
of interest;
(14) lease, purchase, retain, own, hold, improve or use any
property, real, personal or mixed, or any undivided interest in such
property;
(15) sell, convey, mortgage, pledge, lease, exchange, abandon or
otherwise dispose of any property, real, personal or mixed;
(16) establish a budget and make expenditures;
(17) borrow money;
(18) appoint committees, including standing committees, which
may be composed of members, state regulators, state legislators or their
representatives, consumer representatives and such other interested
persons as may be designated in this compact and the bylaws;
(19) provide and receive information from, and cooperate with,
law enforcement agencies;
(20) elect a chairperson, vice chairperson, secretary and treasurer
and such other officers of the commission as provided in the
commission's bylaws;
(21) establish and elect an executive board;
(22) adopt and provide to the participating states an annual report;
(23) determine whether a state's enacted compact is materially
different from the model compact language such that the state would
not qualify for participation in the compact; and
(24) perform such other functions as may be necessary or
appropriate to achieve the purposes of this compact.
(d) (1) All meetings of the commission that are not closed
pursuant to this subsection shall be open to the public. Notice of public
meetings shall be posted on the commission's website at least 30 days
prior to the public meeting.
(2) Notwithstanding subsection (d)(1), the commission may
convene an emergency public meeting by providing at least 24 hours'
prior notice on the commission's website, and any other means as
provided in the commission's rules, for any of the reasons it may
dispense with notice of proposed rulemaking under section 9(l) of this
compact. The commission's legal counsel shall certify that one of the HOUSE BILL No. 2453—page 8
reasons justifying an emergency public meeting has been met.
(3) Notice of all commission meetings shall provide the time, date
and location of the meeting, and if the meeting is to be held or
accessible via telecommunication, videoconference or other electronic
means, the notice shall include the mechanism for access to the meeting
through such means.
(4) The commission may convene in a closed, non-public meeting
for the commission to receive legal advice or to discuss:
(A) Noncompliance of a participating state with its obligations
under the compact;
(B) the employment, compensation, discipline or other matters,
practices or procedures related to specific employees or other matters
related to the commission's internal personnel practices and procedures;
(C) current or threatened discipline of a licensee or compact
privilege holder by the commission or by a participating state's
licensing authority;
(D) current, threatened or reasonably anticipated litigation;
(E) negotiation of contracts for the purchase, lease or sale of
goods, services or real estate;
(F) accusing any person of a crime or formally censuring any
person;
(G) trade secrets or commercial or financial information that is
privileged or confidential;
(H) information of a personal nature where disclosure would
constitute a clearly unwarranted invasion of personal privacy;
(I) investigative records compiled for law enforcement purposes;
(J) information related to any investigative reports prepared by or
on behalf of or for use of the commission or other committee charged
with responsibility of investigation or determination of compliance
issues pursuant to the compact;
(K) legal advice;
(L) matters specifically exempted from disclosure to the public by
federal or participating state law; and
(M) other matters as promulgated by the commission by rule.
(5) If a meeting, or portion of a meeting, is closed, the presiding
officer shall state that the meeting will be closed and reference each
relevant exempting provision, and such reference shall be recorded in
the minutes.
(6) The commission shall keep minutes that fully and clearly
describe all matters discussed in a meeting and shall provide a full and
accurate summary of actions taken, and the reasons therefor, including
a description of the views expressed. All documents considered in
connection with an action shall be identified in such minutes. All
minutes and documents of a closed meeting shall remain under seal,
subject to release only by a majority vote of the commission or order of
a court of competent jurisdiction.
(e) (1) The commission shall pay, or provide for the payment of,
the reasonable expenses of its establishment, organization and ongoing
activities.
(2) The commission may accept any and all appropriate sources of
revenue, donations and grants of money, equipment, supplies, materials
and services.
(3) The commission may levy on and collect an annual assessment
from each participating state and impose fees on licensees of
participating states when a compact privilege is granted to cover the
cost of the operations and activities of the commission and its staff,
which must be in a total amount sufficient to cover its annual budget as
approved each fiscal year for which sufficient revenue is not provided
by other sources. The aggregate annual assessment amount for
participating states shall be allocated based upon a formula that the
commission shall promulgate by rule.
(4) The commission shall not incur obligations of any kind prior to
securing the funds adequate to meet the same nor shall the commission
pledge the credit of any participating State except by and with the HOUSE BILL No. 2453—page 9
authority of the participating state.
(5) The commission shall keep accurate accounts of all receipts
and disbursements. The receipts and disbursements of the commission
shall be subject to the financial review and accounting procedures
established under its bylaws. All receipts and disbursements of funds
handled by the commission shall be subject to an annual financial
review by a certified or licensed public accountant, and the report of the
financial review shall be included in and become part of the annual
report of the commission.
(f) (1) The executive board shall have the power to act on behalf
of the commission according to the terms of this compact. The powers,
duties and responsibilities of the executive board shall include:
(A) Overseeing the day-to-day activities of the administration of
the compact including compliance with the provisions of the compact,
the commission's rules and bylaws;
(B) recommending to the commission changes to the rules or
bylaws, changes to this compact legislation, fees charged to compact
participating states, fees charged to licensees and other fees;
(C) ensuring compact administration services are appropriately
provided, including by contract;
(D) preparing and recommending the budget;
(E) maintaining financial records on behalf of the commission;
(F) monitoring compact compliance of participating states and
providing compliance reports to the commission;
(G) establishing additional committees as necessary;
(H) exercising the powers and duties of the commission during the
interim between commission meetings, except for adopting or
amending rules, adopting or amending bylaws and exercising any other
powers and duties expressly reserved to the commission by rule or
bylaw; and
(I) other duties as provided in the rules or bylaws of the
commission.
(2) The executive board shall be composed of up to seven
members:
(A) The chairperson, vice chairperson, secretary and treasurer of
the commission and any other members of the commission who serve
on the executive board shall be voting members of the executive board;
and
(B) other than the chairperson, vice chairperson, secretary and
treasurer, the commission may elect up to three voting members from
the current membership of the commission.
(3) The commission may remove any member of the executive
board as provided in the commission's bylaws.
(4) The executive board shall meet at least annually.
(A) An executive board meeting at which it takes or intends to
take formal action on a matter shall be open to the public, except that
the executive board may meet in a closed, non-public session of a
public meeting when dealing with any of the matters covered under
subsection (d)(4).
(B) The executive board shall give five business days' notice of its
public meetings, posted on its website and as it may otherwise
determine to provide notice to persons with an interest in the public
matters the executive board intends to address at those meetings.
(5) The executive board may hold an emergency meeting when
acting for the commission to:
(A) Meet an imminent threat to public health, safety or welfare;
(B) prevent a loss of commission or participating state funds; or
(C) protect public health and safety.
(g) (1) The members, officers, executive director, employees and
representatives of the commission shall be immune from suit and
liability, both personally and in their official capacity, for any claim for
damage to or loss of property or personal injury or other civil liability
caused by or arising out of any actual or alleged act, error or omission
that occurred, or that the person against whom the claim is made had a HOUSE BILL No. 2453—page 10
reasonable basis for believing occurred within the scope of commission
employment, duties or responsibilities. Nothing in this subsection shall
be construed to protect any such person from suit or liability for any
damage, loss, injury or liability caused by the intentional or willful or
wanton misconduct of that person. The procurement of insurance of
any type by the commission shall not in any way compromise or limit
the immunity granted hereunder.
(2) The commission shall defend any member, officer, executive
director, employee and representative of the commission in any civil
action seeking to impose liability arising out of any actual or alleged
act, error or omission that occurred within the scope of commission
employment, duties or responsibilities, or as determined by the
commission that the person against whom the claim is made had a
reasonable basis for believing occurred within the scope of commission
employment, duties or responsibilities, provided that nothing in this
paragraph shall be construed to prohibit that person from retaining their
own counsel at their own expense, and provided further that the actual
or alleged act, error or omission did not result from that person's
intentional or willful or wanton misconduct.
(3) Notwithstanding subsection (g)(1), should any member,
officer, executive director, employee or representative of the
commission be held liable for the amount of any settlement or
judgment arising out of any actual or alleged act, error or omission that
occurred within the scope of that individual's employment, duties or
responsibilities for the commission, or that the person to whom that
individual is liable had a reasonable basis for believing occurred within
the scope of the individual's employment, duties or responsibilities for
the commission, the commission shall indemnify and hold harmless
such individual, provided that the actual or alleged act, error or
omission did not result from the intentional or willful or wanton
misconduct of the individual.
(4) Nothing in this subsection shall be construed as a limitation on
the liability of any licensee for professional malpractice or misconduct,
which shall be governed solely by any other applicable state laws.
(5) Nothing in this compact shall be interpreted to waive or
otherwise abrogate a participating state's state action immunity or state
action affirmative defense with respect to antitrust claims under the
Sherman act, Clayton act or any other state or federal antitrust or
anticompetitive law or regulation.
(6) Nothing in this compact shall be construed to be a waiver of
sovereign immunity by the participating states or by the commission.
SECTION 8—DATA SYSTEM
(a) The commission shall provide for the development,
maintenance, operation and utilization of a coordinated database and
reporting system containing licensure, adverse action and the presence
of significant investigative information on all licensees and applicants
for a license in participating states.
(b) Notwithstanding any other provision of state law to the
contrary, a participating state shall submit a uniform data set to the data
system on all individuals to whom this compact is applicable as
required by the rules of the commission, including:
(1) Identifying information;
(2) licensure data;
(3) adverse actions against a licensee, license applicant or compact
privilege and information related thereto;
(4) nonconfidential information related to alternative program
participation, the beginning and ending dates of such participation and
other information related to such participation;
(5) any denial of an application for licensure and the reasons for
such denial, excluding the reporting of any criminal history record
information where prohibited by law;
(6) the presence of significant investigative information; and
(7) other information that may facilitate the administration of this
compact or the protection of the public, as determined by the rules of HOUSE BILL No. 2453—page 11
the commission.
(c) The records and information provided to a participating state
pursuant to this compact or through the data system, when certified by
the commission or an agent thereof, shall constitute the authenticated
business records of the commission and shall be entitled to any
associated hearsay exception in any relevant judicial, quasi-judicial or
administrative proceedings in a participating state.
(d) Significant investigative information pertaining to a licensee in
any participating state shall only be available to other participating
states.
(e) It is the responsibility of the participating states to monitor the
database to determine whether adverse action has been taken against a
licensee or license applicant. Adverse action information pertaining to a
licensee or license applicant in any participating state will be available
to any other participating state.
(f) Participating states contributing information to the data system
may designate information that may not be shared with the public
without the express permission of the contributing state.
(g) Any information submitted to the data system that is
subsequently expunged pursuant to federal law or the laws of the
participating state contributing the information shall be removed from
the data system.
SECTION 9—RULEMAKING
(a) The commission shall promulgate reasonable rules in order to
effectively and efficiently implement and administer the purposes and
provisions of the compact. A commission rule shall be invalid and have
no force or effect only if a court of competent jurisdiction holds that the
rule is invalid because the commission exercised its rulemaking
authority in a manner that is beyond the scope and purposes of the
compact, or the powers granted under this compact, or based upon
another applicable standard of review.
(b) The rules of the commission shall have the force of law in each
participating state, except that where the rules of the commission
conflict with the laws of the participating state that establish the
participating state's scope of practice as held by a court of competent
jurisdiction, the rules of the commission shall be ineffective in that
state to the extent of the conflict.
(c) The commission shall exercise its rulemaking powers pursuant
to the criteria set forth in this section of this compact and the rules
adopted thereunder. Rules shall become binding as of the date specified
by the commission for each rule.
(d) If a majority of the legislatures of the participating states
rejects a commission rule or portion of a commission rule, by
enactment of a statute or resolution in the same manner used to adopt
the compact, within four years of the date of adoption of the rule, then
such rule shall have no further force and effect in any participating state
or to any state applying to participate in the compact.
(e) Rules shall be adopted at a regular or special meeting of the
commission.
(f) Prior to adoption of a proposed rule, the commission shall hold
a public hearing and allow persons to provide oral and written
comments, data, facts, opinions and arguments.
(g) Prior to adoption of a proposed rule by the commission, and at
least 30 days in advance of the meeting at which the commission will
hold a public hearing on the proposed rule, the commission shall
provide a notice of proposed rulemaking:
(1) On the website of the commission or other publicly accessible
platform;
(2) to persons who have requested notice of the commission's
notices of proposed rulemaking; and
(3) in such other ways as the commission may by rule specify.
(h) The notice of proposed rulemaking shall include:
(1) The time, date and location of the public hearing at which the
commission will hear public comments on the proposed rule and, if HOUSE BILL No. 2453—page 12
different, the time, date and location of the meeting where the
commission will consider and vote on the proposed rule;
(2) if the hearing is held via telecommunication, video conference
or other electronic means, the commission shall include the mechanism
for access to the hearing in the notice of proposed rulemaking;
(3) the text of the proposed rule and the reason therefor;
(4) a request for comments on the proposed rule from any
interested person; and
(5) the manner in which interested persons may submit written
comments.
(i) All hearings shall be recorded. A copy of the recording and all
written comments and documents received by the commission in
response to the proposed rule shall be available to the public.
(j) Nothing in this section of this compact shall be construed as
requiring a separate hearing on each commission rule. Rules may be
grouped for the convenience of the commission at hearings required by
this section.
(k) The commission shall, by majority vote of all commissioners,
take final action on the proposed rule based on the rulemaking record.
(1) The commission may adopt changes to the proposed rule if the
changes do not enlarge the original purpose of the proposed rule.
(2) The commission shall provide an explanation of the reasons
for substantive changes made to the proposed rule as well as reasons
for substantive changes not made that were recommended by
commenters.
(3) The commission shall determine a reasonable effective date for
the rule. Except for an emergency as provided in subsection (l), the
effective date of the rule shall be no sooner than 30 days after the
commission issuing the notice that it adopted or amended the rule.
(l) Upon determination that an emergency exists, the commission
may consider and adopt an emergency rule with 24 hours' notice, with
opportunity to comment, and the usual rulemaking procedures provided
in the compact and in this section of this compact shall be retroactively
applied to the rule as soon as reasonably possible, in no event later than
90 days after the effective date of the rule. For the purposes of this
subsection, an emergency rule is one that must be adopted immediately
in order to:
(1) Meet an imminent threat to public health, safety or welfare;
(2) prevent a loss of commission or participating state funds;
(3) meet a deadline for the promulgation of a rule that is
established by federal law or rule; or
(4) protect public health and safety.
(m) The commission or an authorized committee of the
commission may direct revisions to a previously adopted rule for
purposes of correcting typographical errors, errors in format, errors in
consistency or grammatical errors. Public notice of any revisions shall
be posted on the website of the commission. The revision shall be
subject to challenge by any person for a period of 30 days after posting.
The revision may be challenged only on grounds that the revision
results in a material change to a rule. A challenge shall be made in
writing and delivered to the commission prior to the end of the notice
period. If no challenge is made, the revision shall take effect without
further action. If the revision is challenged, the revision may not take
effect without the approval of the commission.
(n) No participating state's rulemaking requirements shall apply
under this compact.
SECTION 10—OVERSIGHT, DISPUTE RESOLUTION AND
ENFORCEMENT
(a) (1) The executive and judicial branches of state government in
each participating state shall enforce this compact and take all actions
necessary and appropriate to implement the compact.
(2) Venue is proper and judicial proceedings by or against the
commission shall be brought solely and exclusively in a court of
competent jurisdiction where the principal office of the commission is HOUSE BILL No. 2453—page 13
located. The commission may waive venue and jurisdictional defenses
to the extent it adopts or consents to participate in alternative dispute
resolution proceedings. Nothing in this paragraph shall affect or limit
the selection or propriety of venue in any action against a licensee for
professional malpractice, misconduct or any such similar matter.
(3) The commission shall be entitled to receive service of process
in any proceeding regarding the enforcement or interpretation of the
compact or commission rule and shall have standing to intervene in
such a proceeding for all purposes. Failure to provide the commission
service of process shall render a judgment or order void as to the
commission, this compact or promulgated rules.
(b) (1) If the commission determines that a participating state has
defaulted in the performance of its obligations or responsibilities under
this compact or the promulgated rules, the commission shall provide
written notice to the defaulting state. The notice of default shall
describe the default, the proposed means of curing the default and any
other action that the commission may take and shall offer training and
specific technical assistance regarding the default.
(2) The commission shall provide a copy of the notice of default
to the other participating states.
(c) If a state in default fails to cure the default, the defaulting state
may be terminated from the compact upon an affirmative vote of a
majority of the commissioners, and all rights, privileges and benefits
conferred on that state by this compact may be terminated on the
effective date of termination. A cure of the default does not relieve the
offending state of obligations or liabilities incurred during the period of
default.
(d) Termination of participation in the compact shall be imposed
only after all other means of securing compliance have been exhausted.
Notice of intent to suspend or terminate shall be given by the
commission to the governor, the majority and minority leaders of the
defaulting state's legislature, the defaulting state's state licensing
authority or authorities, as applicable, and each of the participating
states' state licensing authority or authorities, as applicable.
(e) A state that has been terminated is responsible for all
assessments, obligations and liabilities incurred through the effective
date of termination, including obligations that extend beyond the
effective date of termination.
(f) Upon the termination of a state's participation in this compact,
that state shall immediately provide notice to all licensees of the state,
including licensees of other participating states issued a compact
privilege to practice within that state, of such termination. The
terminated state shall continue to recognize all compact privileges then
in effect in that state for a minimum of 180 days after the date of said
notice of termination.
(g) The commission shall not bear any costs related to a state that
is found to be in default or that has been terminated from the compact,
unless agreed upon in writing between the commission and the
defaulting state.
(h) The defaulting state may appeal the action of the commission
by petitioning the United States district court for the District of
Columbia or the federal district where the commission has its principal
offices. The prevailing party shall be awarded all costs of such
litigation, including reasonable attorney fees.
(i) (1) Upon request by a participating state, the commission shall
attempt to resolve disputes related to the compact that arise among
participating states and between participating states and
nonparticipating states.
(2) The commission shall promulgate a rule providing for both
mediation and binding dispute resolution for disputes as appropriate.
(j) (1) The commission, in the reasonable exercise of its
discretion, shall enforce the provisions of this compact and the
commission's rules.
(2) By majority vote, the commission may initiate legal action HOUSE BILL No. 2453—page 14
against a participating state in default in the United States district court
for the District of Columbia or the federal district where the
commission has its principal offices to enforce compliance with the
provisions of the compact and its promulgated rules. The relief sought
may include both injunctive relief and damages. In the event judicial
enforcement is necessary, the prevailing party shall be awarded all costs
of such litigation, including reasonable attorney fees. The remedies in
this paragraph shall not be the exclusive remedies of the commission.
The commission may pursue any other remedies available under federal
or the defaulting participating state's law.
(3) A participating state may initiate legal action against the
commission in the United States district court for the District of
Columbia or the federal district where the commission has its principal
offices to enforce compliance with the provisions of the compact and
its promulgated rules. The relief sought may include both injunctive
relief and damages. In the event judicial enforcement is necessary, the
prevailing party shall be awarded all costs of such litigation, including
reasonable attorney fees.
(4) No individual or entity other than a participating state may
enforce this compact against the commission.
SECTION 11—EFFECTIVE DATE, WITHDRAWAL AND
AMENDMENT
(a) The compact shall come into effect on the date on which the
compact statute is enacted into law in the seventh participating state.
(1) On or after the effective date of the compact, the commission
shall convene and review the enactment of each of the states that
enacted the compact prior to the commission convening, the charter
participating states, to determine if the statute enacted by each such
charter participating state is materially different than the model
compact.
(A) A charter participating state whose enactment is found to be
materially different from the model compact shall be entitled to the
default process set forth in section 10 of this compact.
(B) If any participating state is later found to be in default, or is
terminated or withdraws from the compact, the commission shall
remain in existence and the compact shall remain in effect even if the
number of participating states should be fewer than seven.
(2) Participating states enacting the compact subsequent to the
charter participating states shall be subject to the process set forth in
section 7(c)(23) of this compact to determine if their enactments are
materially different from the model compact and whether they qualify
for participation in the compact.
(3) All actions taken for the benefit of the commission or in
furtherance of the purposes of the administration of the compact prior
to the effective date of the compact or the commission coming into
existence shall be considered to be actions of the commission unless
specifically repudiated by the commission.
(4) Any state that joins the compact subsequent to the
commission's initial adoption of the rules and bylaws shall be subject to
the commission's rules and bylaws as they exist on the date on which
the compact becomes law in that state. Any rule that has been
previously adopted by the commission shall have the full force and
effect of law on the day the compact becomes law in that state.
(b) Any participating state may withdraw from this compact by
enacting a statute repealing that state's enactment of the compact.
(1) A participating state's withdrawal shall not take effect until 180
days after enactment of the repealing statute.
(2) Withdrawal shall not affect the continuing requirement of the
withdrawing state's licensing authority or authorities to comply with the
investigative and adverse action reporting requirements of this compact
prior to the effective date of withdrawal.
(3) Upon the enactment of a statute withdrawing from this
compact, the state shall immediately provide notice of such withdrawal
to all licensees within that state. Notwithstanding any subsequent HOUSE BILL No. 2453—page 15
statutory enactment to the contrary, such withdrawing state shall
continue to recognize all compact privileges to practice within that state
granted pursuant to this compact for a minimum of 180 days after the
date of such notice of withdrawal.
(c) Nothing contained in this compact shall be construed to
invalidate or prevent any licensure agreement or other cooperative
arrangement between a participating state and a non-participating state
that does not conflict with the provisions of this compact.
(d) This compact may be amended by the participating states. No
amendment to this compact shall become effective and binding upon
any participating state until it is enacted into the laws of all
participating states.
SECTION 12—CONSTRUCTION AND SEVERABILITY
(a) This compact and the commission's rulemaking authority shall
be liberally construed so as to effectuate the purposes and the
implementation and administration of the compact. Provisions of the
compact expressly authorizing or requiring the promulgation of rules
shall not be construed to limit the commission's rulemaking authority
solely for those purposes.
(b) The provisions of this compact shall be severable, and if any
phrase, clause, sentence or provision of this compact is held by a court
of competent jurisdiction to be contrary to the constitution of any
participating state, a state seeking participation in the compact or of the
United States, or the applicability thereof to any government, agency,
person or circumstance is held to be unconstitutional by a court of
competent jurisdiction, the validity of the remainder of this compact
and the applicability thereof to any other government, agency, person
or circumstance shall not be affected by such holding.
(c) Notwithstanding subsection (b), the commission may deny a
state's participation in the compact or, in accordance with the
requirements of section 10(b) of this compact, terminate a participating
state's participation in the compact, if it determines that a constitutional
requirement of a participating state is a material departure from the
compact. Otherwise, if this compact shall be held to be contrary to the
constitution of any participating state, the compact shall remain in full
force and effect as to the remaining participating states and in full force
and effect as to the participating state affected as to all severable
matters.
SECTION 13—CONSISTENT EFFECT AND CONFLICT WITH
OTHER STATE LAWS
(a) Nothing in this compact shall prevent or inhibit the
enforcement of any other law of a participating state that is not
inconsistent with the compact.
(b) Any laws, statutes, regulations or other legal requirements in a
participating state in conflict with the compact are superseded to the
extent of the conflict. HOUSE BILL No. 2453—page 16
(c) All permissible agreements between the commission and the
participating states are binding in accordance with their terms.
Sec. 2. This act shall take effect and be in force from and after its
publication in the statute book.
I hereby certify that the above BILL originated in the
HOUSE, and passed that body
Speaker of the House.
Chief Clerk of the House.
Passed the SENATE ______________________________________________________________________________
President of the Senate.
Secretary of the Senate.
APPROVED __________________________________________________________________________________________________
Governor.