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1 HOUSE BILL NO. 447
2 INTRODUCED BY E. BUTTREY, C. SCHOMER, J. ETCHART, S. HOWELL
3
4 A BILL FOR AN ACT ENTITLED: “AN ACT ENACTING THE RESPIRATORY CARE INTERSTATE COMPACT;
5 PROVIDING FOR CRIMINAL BACKGROUND CHECKS OF RESPIRATORY CARE LICENSE APPLICANTS;
6 PROVIDING RULEMAKING AUTHORITY; AND PROVIDING AN IMMEDIATE EFFECTIVE DATE.”
7
8 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MONTANA:
9
10 NEW SECTION. Section 1.
11 The Respiratory Care Interstate Compact is enacted into law and entered into with all other jurisdictions joining
12 in the compact in the form substantially as follows:
13 SECTION 1
14 TITLE AND PURPOSE
15 (1) The purpose of this compact is to facilitate the interstate practice of respiratory therapy with the
16 goal of improving public access to respiratory therapy services by providing respiratory therapists licensed in a
17 member state the ability to practice in other member states. The compact preserves the regulatory authority of
18 states to protect public health and safety through the current system of state licensure.
19 (2) This compact is designed to achieve the following objectives:
20 (a) increase public access to respiratory therapy services by creating a responsible, streamlined
21 pathway for licensees to practice in member states with the goal of improving outcomes for patients;
22 (b) enhance a state's ability to protect the public's health and safety;
23 (c) promote the cooperation of member states in regulating the practice of respiratory therapy
24 within those member states;
25 (d) ease administrative burdens on states by encouraging the cooperation of member states in
26 regulating multistate respiratory therapy practice;
27 (e) support relocating active military members and their spouses; and
28 (f) promote mobility and address workforce shortages. ****
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1 SECTION 2
2 DEFINITIONS
3 As used in this compact, unless the context requires otherwise, the following definitions shall apply:
4 (1) "Active military member" means any person with a full-time duty status in the armed forces of
5 the United States, including members of the national guard and reserve.
6 (2) "Adverse action" means any administrative, civil, equitable, or criminal action permitted by a
7 state's laws that is imposed by any state authority with regulatory authority over respiratory therapists, such as
8 license denial, censure, revocation, suspension, probation, monitoring of the licensee, or restriction on the
9 licensee's practice, not including participation in an alternative program.
10 (3) "Alternative program" means a nondisciplinary monitoring or practice remediation process
11 applicable to a respiratory therapist approved by any state authority with regulatory authority over respiratory
12 therapists. This includes, but is not limited to, programs to which licensees with substance abuse or addiction
13 issues are referred in lieu of adverse action.
14 (4) "Charter member states" means those member states who were the first seven states to enact
15 the compact into the laws of their state.
16 (5) "Commission" or "respiratory care interstate compact commission" means the government
17 instrumentality and body politic whose membership consists of all member states that have enacted the
18 compact.
19 (6) "Commissioner" means the individual appointed by a member state to serve as the member of
20 the commission for that member state.
21 (7) "Compact" means the respiratory care interstate compact.
22 (8) "Compact privilege" means the authorization granted by a remote state to allow a licensee from
23 another member state to practice as a respiratory therapist in the remote state under the remote state's laws
24 and rules. The practice of respiratory therapy occurs in the member state where the patient is located at the
25 time of the patient encounter.
26 (9) "Criminal background check" means the submission by the member state of fingerprints or
27 other biometric-based information on license applicants at the time of initial licensing for the purpose of
28 obtaining that applicant's criminal history record information, as defined in 28 C.F.R. 20.3(d) or successor ****
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1 provision, from the federal bureau of investigation and the state's criminal history record repository, as defined
2 in 28 C.F.R. 20.3(f) or successor provision.
3 (10) "Data system" means the commission's repository of information about licensees as further set
4 forth in Section 8.
5 (11) "Domicile" means the jurisdiction that is the licensee's principal home for legal purposes.
6 (12) "Encumbered license" means a license that a state's respiratory therapy licensing authority has
7 limited in any way.
8 (13) "Executive committee" means a group of directors elected or appointed to act on behalf of, and
9 within the powers granted to them by the commission.
10 (14) "Home state" except as set forth in Section 5, means the member state that is the licensee's
11 primary domicile.
12 (15) "Home state license" means an active license to practice respiratory therapy in a home state
13 that is not an encumbered license.
14 (16) "Jurisprudence requirement" means an assessment of an individual's knowledge of the state
15 laws and regulations governing the practice of respiratory therapy in such state.
16 (17) "Licensee" means an individual who currently holds an authorization from the state to practice
17 as a respiratory therapist.
18 (18) "Member state" means a state that has enacted the compact and has been admitted to the
19 commission in accordance with the provisions herein and commission rules.
20 (19) "Model compact" means the model for the respiratory care interstate compact on file with the
21 Council of State Governments or other entity as designated by the commission.
22 (20) "Remote state" means a member state where a licensee is exercising or seeking to exercise
23 the compact privilege.
24 (21) "Respiratory therapist" or "respiratory care practitioner" means an individual who holds a
25 credential issued by the National Board for Respiratory Care or its successor and holds a license in a state to
26 practice respiratory therapy. For the purposes of this compact, any other title or status adopted by a state to
27 replace the term “respiratory therapist” or “respiratory care practitioner” shall be deemed synonymous with
28 “respiratory therapist” and shall confer the same rights and responsibilities to the licensee under the provisions ****
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1 of this compact at the time of its enactment.
2 (22) "Respiratory therapy", "respiratory therapy practice", "respiratory care", "the practice of
3 respiratory care", and "the practice of respiratory therapy" means the care and services provided by or under
4 the direction and supervision of a respiratory therapist or respiratory care practitioner.
5 (23) "Respiratory therapy licensing authority" means the agency, board, or other body of a state that
6 is responsible for licensing and regulation of respiratory therapists.
7 (24) "Rule" means a regulation promulgated by an entity that has the force and effect of law.
8 (25) "Scope of practice" means the procedures, actions, and processes a respiratory therapist
9 licensed in a state or practicing under a compact privilege in a state is permitted to undertake in that state and
10 the circumstances under which the respiratory therapist is permitted to undertake those procedures, actions,
11 and processes. Such procedures, actions, processes, and the circumstances under which they may be
12 undertaken may be established through means, including, but not limited to, statute, regulations, case law, and
13 other processes available to the state respiratory therapy licensing authority or other government agency.
14 (26) "Significant investigative information" means information, records, and documents received or
15 generated by a state respiratory therapy licensing authority pursuant to an investigation for which a
16 determination has been made that there is probable cause to believe that the licensee has violated a statute or
17 regulation that is considered more than a minor infraction for which the state respiratory therapy licensing
18 authority could pursue adverse action against the licensee.
19 (27) "State" means any state, commonwealth, district, or territory of the United States.
20 SECTION 3
21 STATE PARTICIPATION IN THIS COMPACT
22 (1) In order to participate in this compact and thereafter continue as a member state, a member
23 state shall:
24 (a) enact a compact that is not materially different from the model compact;
25 (b) license respiratory therapists;
26 (c) participate in the commission's data system;
27 (d) have a mechanism in place for receiving and investigating complaints against licensees and
28 compact privilege holders; ****
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1 (e) notify the commission, in compliance with the terms of this compact and commission rules, of
2 any adverse action against a licensee, a compact privilege holder, or a license applicant;
3 (f) notify the commission, in compliance with the terms of this compact and commission rules, of
4 the existence of significant investigative information;
5 (g) comply with the rules of the commission;
6 (h) grant the compact privilege to a holder of an active home state license and otherwise meet the
7 applicable requirements of Section 4 in a member state; and
8 (i) complete a criminal background check for each new licensee at the time of initial licensure.
9 Where expressly authorized or permitted by federal law, whether such federal law is in effect prior to, at, or after
10 the time of a member state's enactment of this compact, a member state's enactment of this compact shall
11 hereby authorize the member state's respiratory therapy licensing authority to perform criminal background
12 checks as defined herein. The absence of such a federal law as described in this subsection (1)(i) shall not
13 prevent or preclude such authorization where it may be derived or granted through means other than the
14 enactment of this compact.
15 (2) Nothing in this compact prohibits a member state from charging a fee for granting and renewing
16 the compact privilege.
17 SECTION 4
18 COMPACT PRIVILEGE
19 (1) To exercise the compact privilege under the terms and provisions of the compact, the licensee
20 shall:
21 (a) hold and maintain an active home state license as a respiratory therapist;
22 (b) hold and maintain an active credential from the national board for respiratory care or its
23 successor that would qualify the licensee for licensure in the remote state in which the licensee is seeking the
24 privilege;
25 (c) have not had any adverse action against a license within the previous 2 years;
26 (d) notify the commission that the licensee is seeking the compact privilege within a remote state
27 or states;
28 (e) pay any applicable fees, including any state and commission fees and renewal fees, for the ****
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1 compact privilege;
2 (f) meet any jurisprudence requirements established by the remote state in which the licensee is
3 seeking a compact privilege;
4 (g) report to the commission adverse action taken by any nonmember state within 30 days from
5 the date the adverse action is taken;
6 (h) report to the commission, when applying for a compact privilege, the address of the licensee's
7 domicile and thereafter promptly report to the commission any change in the address of the licensee's domicile
8 within 30 days of the effective date of the change in address; and
9 (i) consent to accept service of process by mail at the licensee's domicile on record with the
10 commission with respect to any action brought against the licensee by the commission or a member state, and
11 consent to accept service of a subpoena by mail at the licensee's domicile on record with the commission with
12 respect to any action brought or investigation conducted by the commission or a member state.
13 (2) The compact privilege is valid until the expiration date or revocation of the home state license
14 unless terminated pursuant to adverse action. The licensee must comply with all of the requirements of
15 subsection (1) to maintain the compact privilege in a remote state. If those requirements are met, no adverse
16 actions are taken, and the licensee has paid any applicable compact privilege renewal fees, then the licensee
17 will maintain the licensee's compact privilege.
18 (3) A licensee providing respiratory therapy in a remote state under the compact privilege shall
19 function within the scope of practice authorized by the remote state for the type of respiratory therapist license
20 the licensee holds. Such procedures, actions, processes, and the circumstances under which they may be
21 undertaken may be established through means, including, but not limited to, statute, regulations, case law, and
22 other processes available to the state respiratory therapy licensing authority or other government agency.
23 (4) If a licensee's compact privilege in a remote state is removed by the remote state, the
24 individual shall lose or be ineligible for the compact privilege in that remote state until the compact privilege is
25 no longer limited or restricted by that state.
26 (5) If a home state license is encumbered, the licensee shall lose the compact privilege in all
27 remote states until the following occur:
28 (a) the home state license is no longer encumbered; and ****
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1 (b) 2 years have elapsed from the date on which the license is no longer encumbered due to the
2 adverse action.
3 (6) Once a licensee with a restricted or limited license meets the requirements of subsection (5),
4 the licensee must also meet the requirements of subsection (1) to obtain a compact privilege in a remote state.
5 SECTION 5
6 ACTIVE MILITARY MEMBER OR THEIR SPOUSE
7 (1) An active military member or their spouse shall designate a home state where the individual
8 has a current license in good standing. The individual may retain the home state designation during the period
9 the service member is on active duty.
10 (2) An active military member or their spouse shall not be required to pay to the commission for a
11 compact privilege any fee that may otherwise be charged by the commission. If a remote state chooses to
12 charge a fee for a compact privilege, it may choose to charge a reduced fee or no fee to an active military
13 member or their spouse for a compact privilege.
14 SECTION 6
15 ADVERSE ACTIONS
16 (1) A member state in which a licensee is licensed shall have authority to impose adverse action
17 against the license issued by that member state.
18 (2) A member state may take adverse action based on significant investigative information of a
19 remote state or the home state, so long as the member state follows its own procedures for imposing adverse
20 action.
21 (3) Nothing in this compact shall override a member state's decision that participation in an
22 alternative program may be used in lieu of adverse action and that such participation shall remain nonpublic if
23 required by the member state's laws.
24 (4) A remote state shall have the authority to:
25 (a) take adverse actions as set forth herein against a licensee's compact privilege in that state;
26 (b) issue subpoenas for both hearings and investigations that require the attendance and
27 testimony of witnesses, and the production of evidence.
28 (i) Subpoenas may be issued by a respiratory therapy licensing authority in a member state for ****
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1 the attendance and testimony of witnesses and the production of evidence.
2 (ii) Subpoenas issued by a respiratory therapy licensing authority in a member state for the
3 attendance and testimony of witnesses shall be enforced in the latter state by any court of competent
4 jurisdiction in the latter state, according to the practice and procedure of that court applicable to subpoenas
5 issued in proceedings pending before it.
6 (iii) Subpoenas issued by a respiratory therapy licensing authority in a member state for production
7 of evidence from another member state shall be enforced in the latter state, according to the practice and
8 procedure of that court applicable to subpoenas issued in the proceedings pending before it.
9 (iv) The issuing authority shall pay any witness fees, travel expenses, mileage, and other fees
10 required by the service statutes of the state where the witnesses or evidence are located.
11 (c) unless otherwise prohibited by state law, recover from the licensee the costs of investigations
12 and disposition of cases resulting from any adverse action taken against that licensee;
13 (d) notwithstanding subsection (4)(b), a member state may not issue a subpoena to gather
14 evidence of conduct in another member state that is lawful in such other member state for the purpose of taking
15 adverse action against a licensee's compact privilege or application for a compact privilege in that member
16 state; and
17 (e) nothing in this compact authorizes a member state to impose discipline against a respiratory
18 therapist's compact privilege in that member state for the individual's otherwise lawful practice in another state.
19 (5) In joint investigations:
20 (a) in addition to the authority granted to a member state by its respective respiratory therapy
21 practice act or other applicable state law, a member state may participate with other member states in joint
22 investigations of licensees, provided, however, that a member state receiving such a request has no obligation
23 to respond to any subpoena issued regarding an investigation of conduct or practice that was lawful in a
24 member state at the time it was undertaken; and
25 (b) member states shall share any significant investigative information, litigation, or compliance
26 materials in furtherance of any joint or individual investigation initiated under the compact. In sharing such
27 information between member state respiratory therapy licensing authorities, all information obtained shall be
28 kept confidential, except as otherwise mutually agreed upon by the sharing and receiving member state or ****
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1 states.
2 (6) Nothing in this compact may permit a member state to take any adverse action against a
3 licensee or holder of a compact privilege for conduct or practice that was legal in the member state at the time it
4 was undertaken.
5 (7) Nothing in this compact may permit a member state to take disciplinary action against a
6 licensee or holder of a compact privilege for conduct or practice that was legal in the member state at the time it
7 was undertaken.
8 SECTION 7
9 ESTABLISHMENT OF THE RESPIRATORY CARE INTERSTATE COMPACT COMMISSION
10 (1) The compact member states hereby create and establish a joint government agency whose
11 membership consists of all member states that have enacted the compact known as the respiratory care
12 interstate compact commission. The commission is an instrumentality of the compact member states acting
13 jointly and not an instrumentality of any one state. The commission shall come into existence on or after the
14 effective date of the compact, as set forth in Section 11.
15 (2) Membership, voting, and meetings of the commission are as follows:
16 (a) Each member state shall have and be limited to one commissioner selected by that member
17 state's respiratory therapy licensing authority.
18 (b) The commissioner shall be an administrator or the administrator's designated staff member of
19 the member state's respiratory therapy licensing authority.
20 (c) The commission shall by rule or bylaw establish a term of office for commissioners and may by
21 rule or bylaw establish term limits.
22 (d) The commission may recommend to a member state the removal or suspension any
23 commissioner from office.
24 (e) A member state's respiratory therapy licensing authority shall fill any vacancy of its
25 commissioner occurring on the commission within 60 days of the vacancy.
26 (f) Each commissioner shall be entitled to one vote on all matters before the commission requiring
27 a vote by commissioners.
28 (g) A commissioner shall vote in person or by such other means as provided in the bylaws. The ****
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1 bylaws may provide for commissioners to meet by telecommunication, videoconference, or other means of
2 communication.
3 (h) The commission shall meet at least once during each calendar year. Additional meetings may
4 be held as set forth in the bylaws.
5 (3) The commission shall have the following powers:
6 (a) establish and amend the fiscal year of the commission;
7 (b) establish and amend bylaws and policies, including but not limited to a code of conduct and
8 conflict of interest;
9 (c) establish and amend rules, which shall be binding in all member states;
10 (d) maintain its financial records in accordance with the bylaws;
11 (e) meet and take such actions as are consistent with the provisions of this compact, the
12 commission's rules, and the bylaws;
13 (f) initiate and conduct legal proceedings or actions in the name of the commission, provided that
14 the standing of any respiratory therapy licensing authority to sue or be sued under applicable law shall not be
15 affected;
16 (g) maintain and certify records and information provided to a member state as the authenticated
17 business records of the commission, and designate an agent to do so on the commission's behalf;
18 (h) purchase and maintain insurance and bonds;
19 (i) accept or contract for services of personnel, including but not limited to employees of a
20 member state;
21 (j) conduct an annual financial review;
22 (k) hire employees, elect or appoint officers, fix compensation, define duties, grant such individuals
23 appropriate authority to carry out the purposes of the compact, and establish the commission's personnel
24 policies and programs relating to conflicts of interest, qualifications of personnel, and other related personnel
25 matters;
26 (l) assess and collect fees;
27 (m) accept any and all appropriate gifts, donations, grants of money, other sources of revenue,
28 equipment, supplies, materials, and services, and receive, utilize, and dispose of the same, provided that at all ****
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1 times:
2 (i) the commission shall avoid any appearance of impropriety; and
3 (ii) the commission shall avoid any appearance of conflict of interest;
4 (n) lease, purchase, retain, own, hold, improve, or use any property, real, personal, or mixed, or
5 any undivided interest therein;
6 (o) sell, convey, mortgage, pledge, lease, exchange, abandon, or otherwise dispose of any
7 property real, personal, or mixed;
8 (p) establish a budget and make expenditures;
9 (q) borrow money in a fiscally responsible manner;
10 (r) appoint committees, including standing committees, composed of commissioners, state
11 regulators, state legislators or their representatives, and consumer representatives and such other interested
12 persons as may be designated in this compact and the bylaws;
13 (s) provide and receive information from, and cooperate with, law enforcement agencies;
14 (t) establish and elect an executive committee, including a chairperson, vice-chairperson,
15 secretary, treasurer, and such other offices as the commission shall establish by rule or bylaw;
16 (u) enter into contracts or arrangements for the management of the affairs of the commission;
17 (v) determine whether a state's adopted language is materially different from the model compact
18 language such that the state would not qualify for participation in the compact; and
19 (w) perform such other functions as may be necessary or appropriate to achieve the purposes of
20 this compact.
21 (4) The executive committee is organized as follows:
22 (a) The executive committee shall have the power to act on behalf of the commission according to
23 the terms of this compact. The powers, duties, and responsibilities of the executive committee shall include:
24 (i) overseeing the day-to-day activities of the administration of the compact, including enforcement
25 and compliance with the provisions of the compact, its rules and bylaws, and other such duties as deemed
26 necessary;
27 (ii) recommending to the commission changes to the rules or bylaws, changes to this compact
28 legislation, fees charged to compact member states, fees charged to licensees, and other fees; ****
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1 (iii) ensuring compact administration services are appropriately provided, including by contract;
2 (iv) preparing and recommending the budget;
3 (v) maintaining financial records on behalf of the commission;
4 (vi) monitoring compact compliance of member states and providing compliance reports to the
5 commission;
6 (vii) establishing additional committees as necessary;
7 (viii) exercising the powers and duties of the commission during the interim between commission
8 meetings, except for adopting or amending rules, adopting or amending bylaws, and exercising any other
9 powers and duties expressly reserved to the commission by rule or bylaw; and
10 (ix) performing other duties as provided in the rules or bylaws of the commission.
11 (b) The executive committee shall be composed of up to nine members, as further set forth in the
12 bylaws of the commission:
13 (i) seven voting members who are elected by the commission from the current membership of the
14 commission; and
15 (ii) two ex-officio, nonvoting members.
16 (c) The commission may remove any member of the executive committee as provided in the
17 commission's bylaws.
18 (d) The executive committee shall meet at least annually.
19 (i) Executive committee meetings shall be open to the public, except that the executive committee
20 may meet in a closed, nonpublic meeting as provided in subsection (6)(d).
21 (ii) The executive committee shall give advance notice of its meetings, posted on its website and
22 as determined to provide notice to persons with an interest in the business of the commission.
23 (iii) The executive committee may hold a special meeting in accordance with subsection (6)(b).
24 (5) The commission shall adopt and provide to the member states an annual report.
25 (6) Meetings of the commission must be conducted as follows:
26 (a) All meetings of the commission that are not closed pursuant to subsection (6)(d) shall be open
27 to the public. Notice of public meetings shall be posted on the commission's website at least 30 days prior to
28 the public meeting. ****
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1 (b) Notwithstanding subsection (6)(a), the commission may convene an emergency public meeting
2 by providing at least 24 hours' prior notice on the commission's website, and any other means as provided in
3 the commission's rules, for any of the reasons it may dispense with notice of proposed rulemaking under
4 Section 9(7). The commission's legal counsel shall certify that one of the reasons justifying an emergency
5 public meeting has been met.
6 (c) Notice of all commission meetings shall provide the time, date, and location of the meeting, and
7 if the meeting is to be held or accessible via telecommunication, videoconference, or other electronic means,
8 the notice shall include the mechanism for access to the meeting.
9 (d) The commission or the executive committee may convene in a closed, nonpublic meeting for
10 the commission or executive committee to receive or solicit legal advice or to discuss:
11 (i) noncompliance of a member state with its obligations under the compact;
12 (ii) the employment, compensation, discipline or other matters, practices or procedures related to
13 specific employees;
14 (iii) current or threatened discipline of a licensee or compact privilege holder by the commission or
15 by a member state's respiratory therapy licensing authority;
16 (iv) current, threatened, or reasonably anticipated litigation;
17 (v) negotiation of contracts for the purchase, lease, or sale of goods, services, or real estate;
18 (vi) accusing any person of a crime or formally censuring any person;
19 (vii) trade secrets or commercial or financial information that is privileged or confidential;
20 (viii) information of a personal nature where disclosure would constitute a clearly unwarranted
21 invasion of personal privacy;
22 (ix) investigative records compiled for law enforcement purposes;
23 (x) information related to any investigative reports prepared by or on behalf of or for use of the
24 commission or other committee charged with responsibility of investigation or determination of compliance
25 issues pursuant to the compact;
26 (xi) legal advice;
27 (xii) matters specifically exempted from disclosure by federal or member state law; or
28 (xiii) other matters as promulgated by the commission by rule. ****
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1 (e) If a meeting or a portion of a meeting is closed, the presiding officer shall state that the meeting
2 will be closed and reference each relevant exempting provision, and such reference shall be recorded in the
3 minutes.
4 (f) The commission shall keep minutes in accordance with commission rules and bylaws. All
5 documents considered in connection with an action shall be identified in such minutes. All minutes and
6 documents of a closed meeting shall remain under seal, subject to release only by a majority vote of the
7 commission or order of a court of competent jurisdiction.
8 (7) Financing of the commission is as follows:
9 (a) The commission shall pay or provide for the payment of the reasonable expenses of its
10 establishment, organization, and ongoing activities.
11 (b) The commission may accept any and all appropriate revenue sources as provided herein.
12 (c) The commission may levy on and collect an annual assessment from each member state and
13 impose fees on licensees of member states to whom it grants a compact privilege to cover the cost of the
14 operations and activities of the commission and its staff. The aggregate annual assessment amount for
15 member states, if any, shall be allocated based upon a formula that the commission shall promulgate by rule.
16 (d) The commission shall not incur obligations of any kind prior to securing the funds or a loan
17 adequate to meet the same; nor shall the commission pledge the credit of any of the member states, except by
18 and with the authority of the member state.
19 (e) The commission shall keep accurate accounts of all receipts and disbursements. The receipts
20 and disbursements of the commission shall be subject to the financial review and accounting procedures
21 established under its bylaws. However, all receipts and disbursements of funds handled by the commission
22 shall be subject to an annual financial review by a certified or licensed public accountant, and the report of the
23 financial review shall be included in and become part of the annual report of the commission.
24 (8) Qualified immunity, defense, and indemnification are as follows:
25 (a) Nothing herein shall be construed as a limitation on the liability of any licensee for professional
26 malpractice or misconduct, which shall be governed solely by any other applicable state laws.
27 (b) The member states, commissioners, officers, executive directors, employees, and agents of the
28 commission shall be immune from suit and liability, both personally and in their official capacity, for any claim ****
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1 for damage to or loss of property or personal injury or other civil liability caused by or arising out of any actual or
2 alleged act, error, or omission that occurred, or that the person against whom the claim is made had a
3 reasonable basis for believing occurred within the scope of commission employment, duties or responsibilities,
4 provided that nothing in this subsection (8)(b) shall be construed to protect any such person from suit or liability
5 for any damage, loss, injury, or liability caused by the intentional or willful or wanton misconduct of that person.
6 The procurement of insurance of any type by the commission shall not in any way compromise or limit the
7 immunity granted hereunder.
8 (c) The commission shall defend any commissioner, officer, executive director, employee, and
9 agent of the commission in any civil action seeking to impose liability arising out of any actual or alleged act,
10 error, or omission that occurred within the scope of commission employment, duties, or responsibilities, or as
11 determined by the commission that the person against whom the claim is made had a reasonable basis for
12 believing occurred within the scope of commission employment, duties, or responsibilities, provided that nothing
13 herein shall be construed to prohibit that person from retaining their own counsel at their own expense, and
14 provided further that the actual or alleged act, error, or omission did not result from that person's intentional or
15 willful or wanton misconduct.
16 (d) The commission shall indemnify and hold harmless any commissioner, member, officer,
17 executive director, employee, and agent of the commission for the amount of any settlement or judgment
18 obtained against that person arising out of any actual or alleged act, error, or omission that occurred within the
19 scope of commission employment, duties, or responsibilities, or that such person had a reasonable basis for
20 believing occurred within the scope of commission employment, duties, or responsibilities, provided that the
21 actual or alleged act, error, or omission did not result from the intentional or willful or wanton misconduct of that
22 person.
23 (e) Nothing in this compact shall be interpreted to waive or otherwise abrogate a member state's
24 state action immunity or state action affirmative defense with respect to antitrust claims under the Sherman Act,
25 the Clayton Act, or any other state or federal antitrust or anticompetitive law or regulation.
26 (f) Nothing in this compact shall be construed to be a waiver of sovereign immunity by the
27 member states or by the commission.
28 SECTION 8 ****
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1 DATA SYSTEM
2 (1) The commission shall provide for the development, maintenance, operation, and utilization of a
3 coordinated database and reporting system containing licensure, adverse action, and the presence of
4 significant investigative information.
5 (2) Notwithstanding any other provision of state law to the contrary, a member state shall submit a
6 uniform data set to the data system as required by the rules of the commission, including but not limited to:
7 (a) identifying information;
8 (b) licensure data;
9 (c) adverse actions against a licensee, license applicant, or compact privilege holder and
10 information related thereto;
11 (d) nonconfidential information related to alternative program participation, the beginning and
12 ending dates of such participation, and other information related to such participation not made confidential
13 under member state law;
14 (e) any denial of application for licensure and the reason or reasons for such denial;
15 (f) the presence of current significant investigative information; and
16 (g) other information that may facilitate the administration of this compact or the protection of the
17 public, as determined by the rules of the commission.
18 (3) No member state shall submit any information that constitutes criminal history record
19 information, as defined by applicable federal law, to the data system established hereunder.
20 (4) The records and information provided to a member state pursuant to this compact or through
21 the data system, when certified by the commission or an agent thereof, shall constitute the authenticated
22 business records of the commission, and shall be entitled to any associated hearsay exception in any relevant
23 judicial, quasi-judicial or administrative proceedings in a member state.
24 (5) Significant investigative information pertaining to a licensee in any member state will only be
25 available to other member states.
26 (6) It is the responsibility of the member states to report any adverse action against a licensee and
27 to monitor the database to determine whether adverse action has been taken against a licensee. Adverse
28 action information pertaining to a licensee in any member state will be available to any other member state. ****
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1 (7) Member states contributing information to the data system may designate information that may
2 not be shared with the public without the express permission of the contributing state.
3 (8) Any information submitted to the data system that is subsequently expunged pursuant to
4 federal law or the laws of the member state contributing the information shall be removed from the data system.
5 SECTION 9
6 RULEMAKING
7 (1) The commission shall promulgate reasonable rules in order to effectively and efficiently
8 implement and administer the purposes and provisions of the compact. A rule shall be invalid and have no force
9 or effect only if a court of competent jurisdiction holds that the rule is invalid because the commission exercised
10 its rulemaking authority in a manner that is beyond the scope and purposes of the compact, or the powers
11 granted hereunder, or based upon another applicable standard of review.
12 (2) For purposes of the compact, the rules of the commission shall have the force of law in each
13 member state.
14 (3) The commission shall exercise its rulemaking powers pursuant to the criteria set forth in this
15 section and the rules adopted thereunder. Rules shall become binding as of the date specified in each rule.
16 (4) If a majority of the legislatures of the member states rejects a rule or portion of a rule, by
17 enactment of a statute or resolution in the same manner used to adopt the compact within 4 years of the date of
18 adoption of the rule, then such rule shall have no further force and effect in any member state.
19 (5) Rules shall be adopted at a regular or special meeting of the commission.
20 (6) Prior to adoption of a proposed rule, the commission shall hold a public hearing and allow
21 persons to provide oral and written comments, data, facts, opinions, and arguments.
22 (7) Prior to adoption of a proposed rule by the commission, and at least 30 days in advance of the
23 meeting at which the commission will hold a public hearing on the proposed rule, the commission shall provide
24 a notice of proposed rulemaking:
25 (a) on the website of the commission or other publicly accessible platform;
26 (b) to persons who have requested notice of the commission's notices of proposed rulemaking;
27 and
28 (c) in such other way or ways as the commission may by rule specify. ****
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1 (8) The notice of proposed rulemaking shall include:
2 (a) the time, date, and location of the public hearing at which the commission will hear public
3 comments on the proposed rule and, if different, the time, date, and location of the meeting in which the
4 commission will consider and vote on the proposed rule;
5 (b) if the hearing is held via telecommunication, videoconference, or other electronic means, the
6 commission shall include the mechanism for access to the hearing in the notice of proposed rulemaking;
7 (c) the text of the proposed rule and the reason therefor;
8 (d) a request for comments on the proposed rule from any interested person; and
9 (e) the manner in which interested persons may submit written comments.
10 (9) All hearings will be recorded. A copy of the recording and all written comments and documents
11 received by the commission in response to the proposed rule shall be available to the public.
12 (10) Nothing in this section shall be construed as requiring a separate hearing on each rule. Rules
13 may be grouped for the convenience of the commission at hearings required by this section.
14 (11) The commission shall, by majority vote of all commissioners, take final action on the proposed
15 rule based on the rulemaking record and the full text of the rule.
16 (a) The commission may adopt changes to the proposed rule provided the changes are consistent
17 with the original purpose of the proposed rule.
18 (b) The commission shall provide an explanation of the reasons for substantive changes made to
19 the proposed rule as well as reasons for substantive changes not made that were recommended by
20 commenters.
21 (c) The commission shall determine a reasonable effective date for the rule. Except for an
22 emergency as provided in Section 9(12), the effective date of the rule shall be no sooner than 30 days after
23 issuing the notice that it adopted or amended the rule.
24 (12) Upon determination that an emergency exists, the commission may consider and adopt an
25 emergency rule with 24 hours' notice, and with opportunity to comment, provided that the usual rulemaking
26 procedures provided in the compact and in this section shall be retroactively applied to the rule as soon as
27 reasonably possible, in no event later than 90 days after the effective date of the rule. For the purposes of this
28 provision, an emergency rule is one that must be adopted immediately in order to: ****
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1 (a) meet an imminent threat to public health, safety, or welfare;
2 (b) prevent a loss of commission or member state funds;
3 (c) meet a deadline for the promulgation of a rule that is established by federal law or rule; or
4 (d) protect public health and safety.
5 (13) The commission or an authorized committee of the commission may direct revisions to a
6 previously adopted rule for purposes of correcting typographical errors, errors in format, errors in consistency,
7 or grammatical errors. Public notice of any revisions shall be posted on the website of the commission. The
8 revision shall be subject to challenge by any person for a period of 30 days after posting. The revision may be
9 challenged only on grounds that the revision results in a material change to a rule. A challenge shall be made in
10 writing and delivered to the commission prior to the end of the notice period. If no challenge is made, the
11 revision will take effect without further action. If the revision is challenged, the revision may not take effect
12 without the approval of the commission.
13 (14) No member state's rulemaking process or procedural requirements shall apply to the
14 commission. The commission shall have no authority over any member state's rulemaking process or
15 procedural requirements that do not pertain to the compact.
16 (15) Nothing in this compact, nor any rule or regulation of the commission, shall be construed to
17 limit, restrict, or in any way reduce the ability of a member state to enact and enforce laws, regulations, or other
18 rules related to the practice of respiratory therapy in that state, where those laws, regulations, or other rules are
19 not inconsistent with the provisions of this compact.
20 SECTION 10
21 OVERSIGHT, DISPUTE RESOLUTION, AND ENFORCEMENT
22 (1) Oversight is as follows:
23 (a) The executive and judicial branches of state government in each member state shall enforce
24 this compact and take all actions necessary and appropriate to implement the compact.
25 (b) Venue is proper and judicial proceedings by or against the commission shall be brought solely
26 and exclusively in a court of competent jurisdiction where the principal office of the commission is located. The
27 commission may waive venue and jurisdictional defenses to the extent it adopts or consents to participate in
28 alternative dispute resolution proceedings. Nothing herein shall affect or limit the selection or propriety of venue ****
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1 in any action against a licensee for professional malpractice, misconduct or any such similar matter.
2 (c) The commission shall be entitled to receive service of process in any proceeding regarding the
3 enforcement or interpretation of the compact and shall have standing to intervene in such a proceeding for all
4 purposes. Failure to provide the commission service of process shall render a judgment or order void as to the
5 commission, this compact, or promulgated rules.
6 (2) Default, technical assistance, and termination are as follows:
7 (a) If the commission determines that a member state has defaulted in the performance of its
8 obligations or responsibilities under this compact or the promulgated rules, the commission shall provide written
9 notice to the defaulting state. The notice of default shall describe the default, the proposed means of curing the
10 default, and any other action that the commission may take, and shall offer training and specific technical
11 assistance regarding the default.
12 (b) The commission shall provide a copy of the notice of default to the other member states.
13 (3) If a state in default fails to cure the default, the defaulting state may be terminated from the
14 compact upon an affirmative vote of a majority of the commissioners of the member states, and all rights,
15 privileges and benefits conferred on that state by this compact may be terminated on the effective date of
16 termination. A cure of the default does not relieve the offending state of obligations or liabilities incurred during
17 the period of default.
18 (4) Termination of membership in the compact shall be imposed only after all other means of
19 securing compliance have been exhausted. Notice of intent to suspend or terminate shall be given by the
20 commission to the governor, the majority and minority leaders of the defaulting state's legislature, the defaulting
21 state's respiratory therapy licensing authority and each of the member states' respiratory therapy licensing
22 authorities.
23 (5) A state that has been terminated is responsible for all assessments, obligations, and liabilities
24 incurred through the effective date of termination, including obligations that extend beyond the effective date of
25 termination, if necessary.
26 (6) Upon the termination of a state's membership from this compact, that state shall immediately
27 provide notice to all licensees and compact privilege holders (of which the commission has a record) within that
28 state of such termination. The terminated state shall continue to recognize all licenses granted pursuant to this ****
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1 compact for a minimum of 180 days after the date of said notice of termination.
2 (7) The commission shall not bear any costs related to a state that is found to be in default or that
3 has been terminated from the compact, unless agreed upon in writing between the commission and the
4 defaulting state.
5 (8) The defaulting state may appeal the action of the commission by petitioning the U.S. district
6 court for the District of Columbia or the federal district where the commission has its principal offices. The
7 prevailing party shall be awarded all costs of such litigation, including reasonable attorney's fees.
8 (9) Dispute resolution is as follows:
9 (a) Upon request by a member state, the commission shall attempt to resolve disputes related to
10 the compact that arise among member states and between member and nonmember states.
11 (b) The commission shall promulgate a rule providing for both mediation and binding dispute
12 resolution for disputes, as appropriate.
13 (10) Enforcement is as follows:
14 (a) By majority vote, as may be further provided by rule, the commission may initiate legal action
15 against a member state in default in the U.S. district court for the District of Columbia or the federal district
16 where the commission has its principal offices to enforce compliance with the provisions of the compact and its
17 promulgated rules. A member state by enactment of this compact consents to venue and jurisdiction in such
18 court for the purposes set forth herein. The relief sought may include both injunctive relief and damages. In the
19 event judicial enforcement is necessary, the prevailing party shall be awarded all costs of such litigation,
20 including reasonable attorney's fees. The remedies herein shall not be the exclusive remedies of the
21 commission. The commission may pursue any other remedies available under federal or the defaulting member
22 state's law.
23 (b) A member state may initiate legal action against the commission in the U.S. district court for the
24 District of Columbia or the federal district where the commission has its principal offices to enforce compliance
25 with the provisions of the compact and its promulgated rules. The relief sought may include both injunctive relief
26 and damages. In the event judicial enforcement is necessary, the prevailing party shall be awarded all costs of
27 such litigation, including reasonable attorney's fees.
28 (c) No person other than a member state shall enforce this compact against the commission. ****
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1 SECTION 11
2 EFFECTIVE DATE, WITHDRAWAL, AND AMENDMENT
3 (1) The compact shall come into effect on the date on which the compact statute is enacted into
4 law in the seventh member state ("effective date").
5 (a) On or after the effective date of the compact, the commission shall convene and review the
6 enactment of each of the first seven member states ("charter member states") to determine if the statute
7 enacted by each such charter member state is materially different than the model compact.
8 (i) A charter member state whose enactment is found to be materially different from the model
9 compact shall be entitled to the default process set forth in Section 10.
10 (ii) If any member state is later found to be in default, or is terminated or withdraws from the
11 compact, the commission shall remain in existence and the compact shall remain in effect even if the number of
12 member states should be less than seven.
13 (b) Member states enacting the compact subsequent to the seven initial charter member states
14 shall be subject to the process set forth herein and commission rule to determine if their enactments are
15 materially different from the model compact and whether they qualify for participation in the compact.
16 (c) All actions taken for the benefit of the commission or in furtherance of the purposes of the
17 administration of the compact prior to the effective date of the compact or the commission coming into
18 existence shall be considered to be actions of the commission unless specifically repudiated by the
19 commission. The commission shall own and have all rights to any intellectual property developed on behalf or
20 in furtherance of the commission by individuals or entities involved in organizing or establishing the
21 commission, as may be further set forth in rules of the commission.
22 (d) Any state that joins the compact subsequent to the commission's initial adoption of the rules
23 and bylaws shall be subject to the rules and bylaws as they exist on the date on which the compact becomes
24 law in that state. Any rule that has been previously adopted by the commission shall have the full force and
25 effect of law on the date the compact becomes law in that state.
26 (2) Any member state may withdraw from this compact by enacting a statute repealing the same.
27 (a) A member state's withdrawal shall not take effect until 180 days after enactment of the
28 repealing statute. ****
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1 (b) Withdrawal shall not affect the continuing requirement of the withdrawing state's respiratory
2 therapy licensing authority to comply with the investigative and adverse action reporting requirements of this
3 compact prior to the effective date of withdrawal.
4 (c) Upon the enactment of a statute withdrawing from this compact, a state shall immediately
5 provide notice of such withdrawal to all licensees and compact privilege holders (of which the commission has a
6 record) within that state. Notwithstanding any subsequent statutory enactment to the contrary, such withdrawing
7 state shall continue to recognize all licenses granted pursuant to this compact for a minimum of 180 days after
8 the date of such notice of withdrawal.
9 (3) Nothing contained in this compact shall be construed to invalidate or prevent any licensure
10 agreement or other cooperative arrangement between a member state and a nonmember state that does not
11 conflict with the provisions of this compact.
12 (4) This compact may be amended by the member states. No amendment to this compact shall
13 become effective and binding upon any member state until it is enacted into the laws of all member states.
14 SECTION 12
15 CONSTRUCTION AND SEVERABILITY
16 (1) This compact and the commission's rulemaking authority shall be liberally construed so as to
17 effectuate the purposes and the implementation and administration of the compact. Provisions of the compact
18 expressly authorizing or requiring the promulgation of rules shall not be construed to limit the commission's
19 rulemaking authority solely for those purposes.
20 (2) The provisions of this compact shall be severable, and if any phrase, clause, sentence, or
21 provision of this compact is held by a court of competent jurisdiction to be contrary to the constitution of any
22 member state, a state seeking participation in the compact, or of the United States, or the applicability thereof
23 to any government, agency, person, or circumstance is held to be unconstitutional by a court of competent
24 jurisdiction, the validity of the remainder of this compact and the applicability thereof to any other government,
25 agency, person, or circumstance shall not be affected thereby.
26 (3) Notwithstanding subsection (2) of this section, the commission may deny a state's participation
27 in the compact or, in accordance with the requirements of Section 10, terminate a member state's participation
28 in the compact if it determines that a constitutional requirement of a member state is a material departure from ****
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1 the compact. Otherwise, if this compact shall be held to be contrary to the constitution of any member state,
2 the compact shall remain in full force and effect as to the remaining member states and in full force and effect
3 as to the member state affected as to all severable matters.
4 SECTION 13
5 CONSISTENT EFFECT AND CONFLICT WITH OTHER STATE LAWS
6 (1) Nothing herein shall prevent or inhibit the enforcement of any other law of a member state that
7 is not inconsistent with the compact.
8 (2) Any laws, statutes, regulations, or other legal requirements in a member state in conflict with
9 the compact are superseded to the extent of the conflict, including any subsequently enacted state laws.
10 (3) All permissible agreements between the commission and the member states are binding in
11 accordance with their terms.
12 (4) Other than as expressly set forth herein, nothing in this compact will impact initial licensure.
13
14 NEW SECTION. Section 2. (1) The board shall require each applicant
15 for licensure as a respiratory care practitioner to submit a full set of the applicant's fingerprints to the board for
16 the purpose of obtaining a state and federal criminal history background check.
17 (2) Each license applicant is responsible for paying all fees charged in relation to obtaining the
18 state and federal criminal history background check.
19 (3) The board may require a licensee who is renewing a license to submit a full set of the
20 licensee's fingerprints to the board for the purpose of obtaining a state and federal criminal history background
21 check.
22 (4) The Montana department of justice may share the fingerprint data obtained under this section
23 with the federal bureau of investigation.
24
25 NEW SECTION. Section 3. [Sections 1 and 2] are intended to be codified
26 as an integral part of Title 37, chapter 28, part 2, and the provisions of Title 37, chapter 28, part 2, apply to
27 [sections 1 and 2].
28 ****
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1 NEW SECTION. Section 4. [This act] is effective on passage and approval.
2 - END -