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HOUSE BILL 217
57
TH LEGISLATURE
-
STATE
OF
NEW
MEXICO
-
FIRST SESSION
,
2025
INTRODUCED BY
Pamelya Herndon
AN ACT
RELATING TO PROFESSIONAL LICENSURE; ENACTING THE COUNSELING
COMPACT.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO:
SECTION 1. [NEW MATERIAL] COUNSELING COMPACT ENTERED
INTO.--The Counseling Compact is entered into law and entered
into with all other jurisdictions legally joining therein in a
form substantially as follows:
"Counseling Compact
SECTION 1 -- PURPOSE
The purpose of this compact is to facilitate the
interstate practice of licensed professional counselors with
the goal of improving public access to professional counseling
services. The practice of professional counseling occurs in
the state where the client is located at the time of the
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counseling services. The compact preserves the regulatory
authority of states to protect public health and safety through
the current system of state licensure.
This compact is designed to achieve the following
objectives:
A. increase public access to professional
counseling services by providing for the mutual recognition of
other member state licenses;
B. enhance the states' ability to protect the
public's health and safety;
C. encourage the cooperation of member states in
regulating multistate practice for licensed professional
counselors;
D. support spouses of relocating active duty
military personnel;
E. enhance the exchange of licensure, investigative
and disciplinary information among member states;
F. allow for the use of telehealth technology to
facilitate increased access to professional counseling
services;
G. support the uniformity of professional
counseling licensure requirements throughout the states to
promote public safety and public health benefits;
H. invest all member states with the authority to
hold a licensed professional counselor accountable for meeting
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all state practice laws in the state in which the client is
located at the time care is rendered through the mutual
recognition of member state licenses;
I. eliminate the necessity for licenses in multiple
states; and
J. provide opportunities for interstate practice by
licensed professional counselors who meet uniform licensure
requirements.
SECTION 2 -- DEFINITIONS
As used in this compact, and except as otherwise provided,
the following definitions shall apply:
A. "active duty military" means full-time duty
status in the active uniformed service of the United States,
including members of the national guard and reserve on active
duty orders pursuant to 10 U.S.C. Chapters 1209 and 1211;
B. "adverse action" means any administrative,
civil, equitable or criminal action permitted by a state's laws
that is imposed by a licensing board or other authority against
a licensed professional counselor, including actions against an
individual's license or privilege to practice such as
revocation, suspension, probation, monitoring of the licensee,
limitation on the licensee's practice, or any other encumbrance
on licensure affecting a licensed professional counselor's
authorization to practice, including issuance of a cease and
desist action;
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C. "alternative program" means a non-disciplinary
monitoring or practice remediation process approved by a
licensing board to address impaired practitioners;
D. "continuing competence or education" means a
requirement, as a condition of license renewal, to provide
evidence of participation in, or completion of, educational and
professional activities relevant to practice or area of work;
E. "counseling compact commission" or "commission"
means the national administrative body whose membership
consists of all states that have enacted the compact;
F. "current significant investigative information"
means:
(1) investigative information that a licensing
board, after a preliminary inquiry that includes notification
and an opportunity for the licensed professional counselor to
respond, if required by state law, has reason to believe is not
groundless and, if proved true, would indicate more than a
minor infraction; or
(2) investigative information that indicates
that the licensed professional counselor represents an
immediate threat to public health and safety regardless of
whether the licensed professional counselor has been notified
and had an opportunity to respond;
G. "data system" means a repository of information
about licensees, including continuing education, examination,
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licensure, investigative, privilege to practice and adverse
action information;
H. "encumbered license" means a license in which an
adverse action restricts the practice of licensed professional
counseling by the licensee and the adverse action has been
reported to the national practitioner data bank;
I. "encumbrance" means a revocation or suspension
of, or any limitation on, the full and unrestricted practice of
licensed professional counseling by a licensing board;
J. "executive committee" means a group of directors
elected or appointed to act on behalf of, and within the powers
granted to them by, the commission;
K. "home state" means the member state that is the
licensee's primary state of residence;
L. "impaired practitioner" means an individual who
has a condition that may impair the person's ability to
practice as a licensed professional counselor without some type
of intervention and may include alcohol or drug dependence,
mental health impairment or neurological or physical
impairments;
M. "investigative information" means information,
records or documents received or generated by a licensing board
pursuant to an investigation;
N. "jurisprudence requirement", if required by a
member state, means the assessment of an individual's knowledge
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of the laws and rules governing the practice of professional
counseling in a state;
O. "licensed professional counselor" means a
counselor licensed by a member state, regardless of the title
used by that state, to independently assess, diagnose and treat
behavioral health conditions;
P. "licensee" means an individual who currently
holds an authorization from the state to practice as a licensed
professional counselor;
Q. "licensing board" means the agency of a state,
or equivalent, that is responsible for the licensing and
regulation of licensed professional counselors;
R. "member state" means a state that has enacted
the compact;
S. "privilege to practice" means a legal
authorization, which is equivalent to a license, permitting the
practice of professional counseling in a remote state;
T. "professional counseling" means the assessment,
diagnosis and treatment of behavioral health conditions by a
licensed professional counselor;
U. "remote state" means a member state other than
the home state, where a licensee is exercising or seeking to
exercise the privilege to practice;
V. "rule" means a regulation promulgated by the
commission that has the force of law;
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W. "single state license" means a licensed
professional counselor license issued by a member state that
authorizes practice only within the issuing state and does not
include a privilege to practice in any other member state;
X. "state" means any state, commonwealth, district
or territory of the United States that regulates the practice
of professional counseling;
Y. "telehealth" means the application of
telecommunication technology to deliver professional counseling
services remotely to assess, diagnose and treat behavioral
health conditions; and
Z. "unencumbered license" means a license that
authorizes a licensed professional counselor to engage in the
full and unrestricted practice of professional counseling.
SECTION 3 -- STATE PARTICIPATION IN THE COMPACT
A. To participate in the compact, a state must
currently:
(1) license and regulate licensed professional
counselors;
(2) require licensees to pass a nationally
recognized exam approved by the commission; and
(3) require licensees to have a sixty
semester-hour or ninety quarter-hour master's degree in
counseling or sixty semester-hours or ninety quarter-hours of
graduate course work, including the following topic areas:
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(a) professional counseling orientation
and ethical practice;
(b) social and cultural diversity;
(c) human growth and development;
(d) career development;
(e) counseling and helping
relationships;
(f) group counseling and group work;
(g) diagnosis and treatment; assessment
and testing;
(h) research and program evaluation; and
(i) other areas as determined by the
commission;
(4) require licensees to complete a supervised
postgraduate professional experience as defined by the
commission; and
(5) have a mechanism in place for receiving
and investigating complaints about licensees.
B. A member state shall:
(1) participate fully in the commission's data
system, including using the commission's unique identifier as
defined in rules;
(2) notify the commission, in compliance with
the terms of the compact and rules, of any adverse action or
the availability of investigative information regarding a
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licensee;
(3) implement or utilize procedures for
considering the criminal history records of applicants for an
initial privilege to practice, including the submission of
fingerprints or other biometric-based information by applicants
for the purpose of obtaining an applicant's criminal history
record information from the federal bureau of investigation and
the agency responsible for retaining that state's criminal
records, including:
(a) a criminal background check
requirement, within a time frame established by rule, by
receiving the results of the federal bureau of investigation
record search and shall use the results in making licensure
decisions; and
(b) a requirement that communication
between a member state, the commission and among member states
regarding the verification of eligibility for licensure through
the compact shall not include any information received from the
federal bureau of investigation relating to a federal criminal
records check performed by a member state under Public Law
92-544;
(4) comply with the rules of the commission;
(5) require an applicant to obtain or retain a
license in the home state and meet the home state's
qualifications for licensure or renewal of licensure, as well
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as all other applicable state laws;
(6) grant the privilege to practice to a
licensee holding a valid unencumbered license in another member
state in accordance with the terms of the compact and rules;
and
(7) provide for the attendance of the state's
commissioner to the counseling compact commission meetings.
C. Member states may charge a fee for granting the
privilege to practice.
D. Individuals not residing in a member state shall
continue to be able to apply for a member state's single state
license as provided under the laws of each member state.
However, the single state license granted to these individuals
shall not be recognized as granting a privilege to practice
professional counseling in any other member state.
E. Nothing in this compact shall affect the
requirements established by a member state for the issuance of
a single state license.
F. A license issued to a licensed professional
counselor by a home state to a resident in that state shall be
recognized by each member state as authorizing a licensed
professional counselor to practice professional counseling,
under a privilege to practice, in each member state.
SECTION 4 -- PRIVILEGE TO PRACTICE
A. To exercise the privilege to practice under the
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terms and provisions of the compact, the licensee shall:
(1) hold a license in the home state;
(2) have a valid United States social security
number or national practitioner identifier;
(3) be eligible for a privilege to practice in
any member state in accordance with Subsections D, G and H of
this section;
(4) have not had any encumbrance or
restriction against any license or privilege to practice within
the previous two years;
(5) notify the commission that the licensee is
seeking the privilege to practice within a remote state;
(6) pay any applicable fees, including any
state fee, for the privilege to practice;
(7) meet any continuing competence or
education requirements established by the home state;
(8) meet any jurisprudence requirements
established by the remote state in which the licensee is
seeking a privilege to practice; and
(9) report to the commission any adverse
action, encumbrance or restriction on license taken by any
nonmember state within thirty days from the date the action is
taken.
B. The privilege to practice is valid until the
expiration date of the home state license. The licensee must
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comply with the requirements of Subsection A of this section to
maintain the privilege to practice in the remote state.
C. A licensee providing professional counseling in
a remote state under the privilege to practice shall adhere to
the laws and regulations of the remote state.
D. A licensee providing professional counseling
services in a remote state is subject to that state's
regulatory authority. A remote state may, in accordance with
due process and that state's laws, remove a licensee's
privilege to practice in the remote state for a specific period
of time, impose fines or take any other necessary actions to
protect the health and safety of its citizens. The licensee
may be ineligible for a privilege to practice in any member
state until the specific time for removal has passed and all
fines are paid.
E. If a home state license is encumbered, the
licensee shall lose the privilege to practice in any remote
state until the following occur:
(1) the home state license is no longer
encumbered; and
(2) the licensee has not had any encumbrance
or restriction against any license or privilege to practice
within the previous two years.
F. Once an encumbered license in the home state is
restored to good standing, the licensee shall meet the
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requirements of Subsection A of this section in order to obtain
a privilege to practice in any remote state.
G. If a licensee's privilege to practice in any
remote state is removed, the individual may lose the privilege
to practice in all other remote states until the following
occur:
(1) the specific period of time for which the
privilege to practice was removed has ended;
(2) all fines have been paid; and
(3) the licensee has not had any encumbrance
or restriction against any license or privilege to practice
within the previous two years.
H. Once the requirements of Subsection G of this
section have been met, the licensee shall meet the requirements
in Subsection A of this section in order to obtain a privilege
to practice in a remote state.
SECTION 5 -- OBTAINING A NEW HOME STATE LICENSE BASED ON A
PRIVILEGE TO PRACTICE
A. A licensed professional counselor may hold a
home state license, which allows for a privilege to practice in
other member states, in only one member state at a time.
B. If a licensed professional counselor's primary
state of residence changes due to moving between two member
states:
(1) the licensed professional counselor shall
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file an application for obtaining a new home state license
based on a privilege to practice; pay all applicable fees; and
notify the current and new home state in accordance with
applicable rules adopted by the commission;
(2) upon receipt of an application for
obtaining a new home state license by virtue of a privilege to
practice, the new home state shall verify that the licensed
professional counselor meets the pertinent criteria outlined in
Section 4 of this compact via the data system, without need for
primary source verification except for:
(a) a federal bureau of investigation
fingerprint-based criminal background check if not previously
performed or updated pursuant to applicable rules adopted by
the commission in accordance with Public Law 92-544;
(b) other criminal background checks as
required by the new home state; and
(c) completion of any requisite
jurisprudence requirements of the new home state;
(3) the former home state shall convert the
former home state license into a privilege to practice once the
new home state has activated the new home state license in
accordance with applicable rules adopted by the commission;
(4) notwithstanding any other provision of
this compact, if the licensed professional counselor cannot
meet the criteria established in Section 4 of this compact, the
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new home state may apply its requirements for issuing a new
single state license; and
(5) the licensed professional counselor shall
pay all applicable fees to the new home state in order to be
issued a new home state license.
C. If a licensed professional counselor changes
primary state of residence by moving from a member state to a
nonmember state, or from a nonmember state to a member state,
the state criteria shall apply for issuance of a single state
license in the new state.
D. Nothing in this compact shall interfere with a
licensee's ability to hold a single state license in multiple
states; however, for the purposes of this compact, a licensee
shall have only one home state license.
E. Nothing in this compact shall affect the
requirements established by a member state for the issuance of
a single state license.
SECTION 6 -- ACTIVE DUTY MILITARY MEMBERS OR THEIR SPOUSES
An active duty military member, or the member's spouse,
shall designate a home state where the member or member's
spouse has a current license in good standing. The member or
member's spouse may retain the home state designation during
the period the member is on active duty. Subsequent to
designating a home state, the member or member's spouse shall
only change the member's or member's spouse's home state
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through application for licensure in the new state, or through
the process outlined in Section 5 of this compact.
SECTION 7 -- COMPACT PRIVILEGE TO PRACTICE TELEHEALTH
A. Member states shall recognize the right of a
licensed professional counselor, licensed by a home state in
accordance with Section 3 of this compact and under rules
promulgated by the commission, to practice professional
counseling in any member state via telehealth under a privilege
to practice as provided in the compact and rules promulgated by
the commission.
B. A licensee providing professional counseling
services in a remote state under the privilege to practice
shall adhere to the laws and regulations of the remote state.
SECTION 8 -- ADVERSE ACTIONS
A. In addition to the other powers conferred by
state law:
(1) a remote state shall have the authority,
in accordance with existing state due process law, to take
adverse action against a licensed professional counselor's
privilege to practice within that member state;
(2) a remote state shall have the authority,
in accordance with existing state due process law, to issue
subpoenas for both hearings and investigations that require the
attendance and testimony of witnesses as well as the production
of evidence. Subpoenas issued by a licensing board in a member
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state for the attendance and testimony of witnesses or the
production of evidence from another member state shall be
enforced in the latter state by any court of competent
jurisdiction, according to the practice and procedure of that
court applicable to subpoenas issued in proceedings pending
before it. The issuing authority shall pay any witness fees,
travel expenses, mileage and other fees required by the service
statutes of the state in which the witnesses or evidence is
located; and
(3) the home state shall have the sole power
to take adverse action against a licensed professional
counselor's license issued by the home state.
B. For purposes of taking adverse action, the home
state shall give the same priority and effect to reported
conduct received from a member state as it would if the conduct
had occurred within the home state. In so doing, the home
state shall apply its own state laws to determine appropriate
action.
C. The home state shall complete any pending
investigations of a licensed professional counselor who changes
the primary state of residence during the course of the
investigations. The home state shall also have the authority
to take appropriate action and shall promptly report the
conclusions of the investigations to the administrator of the
data system. The administrator of the coordinated licensure
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information system shall promptly notify the new home state of
any adverse actions.
D. A member state, if otherwise permitted by state
law, may recover from the affected licensed professional
counselor the costs of investigations and dispositions of cases
resulting from any adverse action taken against that licensed
professional counselor.
E. A member state may take adverse action based on
the factual findings of the remote state; provided that the
member state follows its own procedures for taking the adverse
action.
F. Joint investigations shall be conducted as
follows:
(1) in addition to the authority granted to a
member state by its respective professional counseling practice
act or other applicable state law, any member state may
participate with other member states in joint investigations of
licensees; and
(2) member states shall share any
investigative, litigation or compliance materials in
furtherance of any joint or individual investigation initiated
under the compact.
G. If adverse action is taken by the home state
against the license of a licensed professional counselor, the
licensed professional counselor's privilege to practice in all
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other member states shall be deactivated until all encumbrances
have been removed from the state license. All home state
disciplinary orders that impose adverse action against the
license of a licensed professional counselor shall include a
statement that the licensed professional counselor's privilege
to practice is deactivated in all member states during the
pendency of the order.
H. If a member state takes adverse action, it shall
promptly notify the administrator of the data system. The
administrator of the data system shall promptly notify the home
state of any adverse actions by remote states.
I. Nothing in this compact shall override a member
state's decision that participation in an alternative program
may be used in lieu of adverse action.
SECTION 9 -- ESTABLISHMENT OF COUNSELING COMPACT COMMISSION
A. The compact member states shall create and
establish a joint public agency known as the "counseling
compact commission" as follows:
(1) the counseling compact commission shall be
an instrumentality of the compact states;
(2) venue is proper and judicial proceedings
by or against the commission shall be brought solely and
exclusively in a court of competent jurisdiction where the
principal office of the commission is located. The counseling
compact commission may waive venue and jurisdictional defenses
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to the extent it adopts or consents to participate in
alternative dispute resolution proceedings; and
(3) nothing in this compact shall be construed
to be a waiver of sovereign immunity.
B. Membership, voting and meetings shall be
conducted as follows:
(1) each member state shall have one delegate
selected by that member state's licensing board;
(2) a delegate shall be:
(a) a current member of the licensing
board at the time of appointment, who is a licensed
professional counselor or public member; or
(b) an administrator of the licensing
board;
(3) a delegate may be removed or suspended
from office as provided by the law of the state from which the
delegate is appointed;
(4) a vacancy occurring on the commission
shall be filled by the member state licensing board within
sixty days;
(5) a delegate shall be entitled to one vote
with regard to the promulgation of rules and creation of bylaws
and have an opportunity to participate in the business and
affairs of the commission;
(6) a delegate shall vote in person or by
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other means as provided in the bylaws, including participation
in meetings by telephone or other means of communication;
(7) the commission shall meet at least once
during each calendar year, with additional meetings to be held
as set forth in the bylaws; and
(8) the commission shall by rule establish a
term of office for delegates and may by rule establish term
limits.
C. The commission shall have the following powers
and duties:
(1) establish the fiscal year of the
commission;
(2) establish bylaws;
(3) maintain its financial records in
accordance with the bylaws;
(4) meet and take such actions as are
consistent with the provisions of this compact and the bylaws;
(5) promulgate rules, which shall be binding
to the extent and in the manner provided for in the compact;
(6) bring and prosecute legal proceedings or
actions in the name of the commission; provided that the
standing of any licensing board to sue or be sued under
applicable law shall not be affected;
(7) purchase and maintain insurance and bonds;
(8) borrow, accept or contract for services of
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personnel, including employees of a member state;
(9) 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;
(10) accept any and all appropriate donations
and grants of money, equipment, supplies, materials and
services and receive, utilize and dispose of the same; provided
that at all times the commission shall avoid any appearance of
impropriety or conflict of interest;
(11) lease, purchase, accept appropriate gifts
or donations of, or otherwise own, hold, improve or use, any
property, real, personal or mixed; provided that at all times
the commission shall avoid any appearance of impropriety;
(12) sell, convey, mortgage, pledge, lease,
exchange, abandon or otherwise dispose of any property, real,
personal or mixed;
(13) establish a budget and make expenditures;
(14) borrow money;
(15) appoint committees, including standing
committees composed of members, state regulators, state
legislators or their representatives, consumer representatives
and other interested persons as designated in this compact and
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the bylaws;
(16) provide and receive information from, and
cooperate with, law enforcement agencies;
(17) establish and elect an executive
committee; and
(18) perform such other functions as necessary
or appropriate to achieve the purposes of this compact
consistent with the state regulation of professional counseling
licensure and practice.
D. The executive committee shall:
(1) have the power to act on behalf of the
commission according to the terms of this compact;
(2) be composed of up to eleven members,
including:
(a) an even number of voting members who
are elected by the commission from the current membership of
the commission;
(b) up to four ex-officio, nonvoting
members from four recognized national professional counselor
organizations; and
(c) ex-officio members shall be selected
by their respective organizations;
(3) the commission may remove a member of the
executive committee as provided in the bylaws;
(4) meet at least annually; and
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(5) have the following duties and
responsibilities:
(a) recommend changes to the commission
regarding the rules or bylaws, changes to this compact
legislation, fees paid by compact member states such as annual
dues and any commission compact fee charged to licensees for
the privilege to practice;
(b) ensure compact administration
services are appropriately provided, contractual or otherwise;
(c) prepare and recommend the budget;
(d) maintain financial records on behalf
of the commission;
(e) monitor compact compliance of member
states and provide compliance reports to the commission;
(f) establish additional committees as
necessary; and
(g) perform additional duties as
provided in rules or bylaws.
E. Meetings of the commission, the executive
committee or other committees:
(1) shall be open to the public, and public
notice of meetings shall be given in the same manner as
required under the rulemaking provisions in Section 11 of this
compact; and
(2) may convene in a closed, nonpublic meeting
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if any of the following matters will be discussed:
(a) the noncompliance of a member state
with its obligations under the compact;
(b) the employment, compensation,
discipline or other matters, practices or procedures related to
specific employees or other matters related to the commission's
internal personnel practices and procedures;
(c) current, threatened or reasonably
anticipated litigation;
(d) negotiation of contracts for the
purchase, lease or sale of goods, services or real estate;
(e) accusations of a crime or formal
censure of a person;
(f) disclosure of trade secrets or
commercial or financial information that is privileged or
confidential;
(g) disclosure of information of a
personal nature where disclosure would constitute a clearly
unwarranted invasion of personal privacy;
(h) disclosure of investigative records
compiled for law enforcement purposes;
(i) disclosure of information related to
any investigative reports prepared by or on behalf of or for
use of the commission or other committee charged with
responsibility of investigation or determination of compliance
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issues pursuant to the compact; or
(j) matters specifically exempted from
disclosure by federal or member state statute;
(3) if fully or partially closed pursuant to
Paragraph (2) of this subsection, the commission's legal
counsel or designee shall reference each relevant exempting
provision and certify that the meeting may be closed; and
(4) shall be memorialized with minutes that
fully and clearly describe all matters discussed in a meeting
and provide a full and accurate summary of action taken and
reasons for taking action, including a description of the views
expressed; and identify all documents considered in connection
with an action taken; provided that all minutes and documents
of a closed meeting shall remain under seal, subject to release
by a majority vote of the commission or order of a court of
competent jurisdiction.
F. Financing of the commission shall be carried out
as follows:
(1) the commission shall pay, or provide for
the payment of, the reasonable expenses of its establishment,
organization and ongoing activities;
(2) the commission may accept any and all
appropriate revenue sources, donations and grants of money,
equipment, supplies, materials and services;
(3) the commission may levy on and collect an
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annual assessment from each member state or impose fees on
other parties to cover the cost of the operations and
activities of the commission and its staff, in an amount
sufficient to cover its annual budget as approved each year for
which revenue is not provided by other sources. The aggregate
annual assessment amount shall be allocated based upon a
formula to be determined by the commission by rule, which shall
be binding upon all member states;
(4) the commission shall not incur obligations
prior to securing the funds adequate to meet the obligations or
pledge the credit of any of the member states, absent the
authority of the member state; and
(5) the commission shall keep accurate
accounts of all receipts and disbursements. The receipts and
disbursements of the commission shall be subject to the audit
and accounting procedures established under its bylaws.
However, all receipts and disbursements of funds handled by the
commission shall be audited yearly by a certified or licensed
public accountant, and the report of the audit shall be
included in and become part of the annual report of the
commission.
G. Qualified immunity, defense and indemnification
shall apply as follows:
(1) the members, officers, executive director,
employees and representatives of the commission shall be immune
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from suit and liability, either personally or in their official
capacity, for any claim for damage to or loss of property or
personal injury or other civil liability caused by or arising
out of any actual or alleged act, error or omission that
occurred, or that the person against whom the claim is made had
a reasonable basis for believing occurred within the scope of
commission employment, duties or responsibilities; provided
that nothing in this paragraph shall be construed to protect
any such person from suit or liability for any damage, loss,
injury or liability caused by the intentional or willful or
wanton misconduct of that person;
(2) the commission shall defend any member,
officer, executive director, employee or representative of the
commission in any civil action seeking to impose liability
arising out of any actual or alleged act, error or omission
that occurred within the scope of commission employment, duties
or responsibilities, or that the person against whom the claim
is made had a reasonable basis for believing occurred within
the scope of commission employment, duties or responsibilities;
provided that nothing in this paragraph shall be construed to
prohibit that person from retaining his or her own counsel; 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; and
(3) the commission shall indemnify and hold
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harmless any member, officer, executive director, employee or
representative of the commission for the amount of any
settlement or judgment obtained against that person arising out
of any actual or alleged act, error or omission that occurred
within the scope of commission, employment, duties or
responsibilities, or that such person had a reasonable basis
for believing occurred within the scope of commission
employment, duties or responsibilities; provided that the
actual or alleged act, error or omission did not result from
the intentional or willful or wanton misconduct of that person.
SECTION 10 -- 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 investigative information on all licensees
in member states.
B. Unless prohibited by state law, a member state
shall submit a uniform data set to the data system on all
individuals to whom this compact is applicable as required by
the rules of the commission, including:
(1) identifying information;
(2) licensure data;
(3) adverse actions against a license or
privilege to practice;
(4) non-confidential information related to
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alternative program participation;
(5) any denial of application for licensure
and the reasons for such denial;
(6) current significant investigative
information; or
(7) other information that may facilitate the
administration of this compact, as determined by the rules of
the commission.
C. Investigative information pertaining to a
licensee in a member state is only available to other member
states.
D. The commission shall promptly notify all member
states of an adverse action taken against a licensee or an
individual applying for a license. Adverse action information
pertaining to a licensee in a member state is available to any
other member state.
E. Member states contributing information to the
data system may designate information that may not be shared
with the public without the express permission of the
contributing state.
F. Any information submitted to the data system
that is subsequently required to be expunged by the laws of the
member state contributing the information shall be removed from
the data system.
SECTION 11 -- RULEMAKING
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A. The commission shall promulgate reasonable rules
in order to effectively and efficiently achieve the purpose of
the compact. If the commission exercises its rulemaking
authority in a manner that is beyond the scope of the purposes
of the compact or the powers granted pursuant to the compact,
then such an action by the commission shall be invalid and have
no force or effect.
B. The commission shall exercise its rulemaking
powers pursuant to the criteria set forth in this section and
the rules adopted pursuant to the compact. Rules and
amendments shall become binding as of the date specified in
each rule or amendment.
C. If a majority of the legislatures of the member
states rejects a rule, by enactment of a statute or resolution
in the same manner used to adopt the compact within four years
of the date of adoption of the rule, then such rule shall have
no further force and effect in any member state.
D. Rules or amendments to the rules shall be
adopted at a regular or special meeting of the commission.
E. Prior to promulgation and adoption of a final
rule by the commission, and at least thirty days in advance of
the meeting at which the rule will be considered and voted
upon, the commission shall file a notice of proposed
rulemaking:
(1) on the website of the commission or other
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publicly accessible platform; and
(2) on the website of each member state
licensing board, other publicly accessible platform or the
publication in which each state would otherwise publish
proposed rules.
F. The notice of proposed rulemaking shall include:
(1) the proposed time, date and location of
the meeting in which the rule will be considered and voted
upon;
(2) the text of the proposed rule or amendment
and the reason for the proposed rule;
(3) a request for comments on the proposed
rule from any interested person; and
(4) the manner in which interested persons may
submit notice to the commission of their intention to attend
the public hearing and any written comments.
G. Prior to adoption of a proposed rule, the
commission shall allow persons to submit written data, facts,
opinions and arguments, which shall be made available to the
public.
H. The commission shall grant an opportunity for a
public hearing before it adopts a rule or amendment if a
hearing is requested by:
(1) at least twenty-five persons;
(2) a state or federal governmental
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subdivision or agency; or
(3) an association having at least twenty-five
members.
I. If a hearing is held on the proposed rule or
amendment, the commission shall publish the place, time and
date of the scheduled public hearing. If the hearing is held
via electronic means, the commission shall publish the
mechanism for access to the electronic hearing to ensure the
following:
(1) all persons wishing to be heard at the
hearing shall notify the executive director of the commission
or other designated member in writing of their desire to appear
and testify at the hearing not less than five business days
before the scheduled date of the hearing;
(2) hearings shall be conducted in a manner
providing each person who wishes to comment a fair and
reasonable opportunity to comment orally or in writing;
(3) all hearings will be recorded, and a copy
of the recording will be made available on request; and
(4) nothing in this section shall be construed
as requiring a separate hearing on each rule, and rules may be
grouped for the convenience of the commission at hearings
required by this section.
J. Following the scheduled hearing date, or by the
close of business on the scheduled hearing date if the hearing
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was not held, the commission shall consider all written and
oral comments received.
K. If no written notice of intent to attend the
public hearing by interested parties is received, the
commission may proceed with promulgation of the proposed rule
without a public hearing.
L. The commission shall, by majority vote of all
members, take final action on the proposed rule and shall
determine the effective date of the rule, if any, based on the
rulemaking record and the full text of the rule.
M. Upon determination that an emergency exists, the
commission may consider and adopt an emergency rule without
prior notice, opportunity for comment or hearing; provided that
the usual rulemaking procedures provided in the compact and in
this section shall be retroactively applied to the rule as soon
as reasonably possible and later than ninety days after the
effective date of the rule. For the purposes of this
provision, 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 member
state funds;
(3) meet a deadline for the promulgation of an
administrative rule that is established by federal law or rule;
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or
(4) protect public health and safety.
N. The commission or an authorized committee of the
commission may direct revisions to a previously adopted rule or
amendment for purposes of correcting typographical 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 thirty days after posting. The
revision may be challenged only on grounds that the revision
results in a material change to a rule. A challenge shall be
made in writing and delivered to the chair of the commission
prior to the end of the notice period. If no challenge is
made, the revision shall take effect without further action.
If the revision is challenged, the revision may not take effect
without the approval of the commission.
SECTION 12 -- COMPACT OVERSIGHT, DISPUTE RESOLUTION AND
ENFORCEMENT
A. Compact oversight shall be carried out as
follows:
(1) the executive, legislative and judicial
branches of state government in each member state shall enforce
this compact and take all necessary and appropriate actions
necessary to effectuate the compact's purposes and intent. The
provisions of this compact and the rules promulgated hereunder
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shall have standing as statutory law;
(2) all courts shall take judicial notice of
the compact and the rules in any judicial or administrative
proceeding that may affect the powers, responsibilities or
actions of the commission in a member state pertaining to the
subject matter of this compact; and
(3) the commission shall be entitled to
receive service of process in such proceedings and shall have
standing to intervene in such a proceeding for all purposes.
Failure to provide service of process to the commission shall
render a judgment or order void as to the commission, this
compact or promulgated rules.
B. Default, technical assistance and member state
termination shall be managed as follows:
(1) if the commission determines that a member
state has defaulted in the performance of its obligations or
responsibilities under this compact or the promulgated rules,
the commission shall provide:
(a) written notice to the defaulting
member state and other member states of the nature of the
default, the proposed means of curing the default or any other
action to be taken by the commission; and
(b) remedial training and specific
technical assistance regarding the default.
C. If a member state is in default of the compact
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and fails to cure the default, the defaulting member state may
be terminated from the compact upon an affirmative vote of a
majority of the member states, and all rights, privileges and
benefits conferred by this compact may be terminated on the
effective date of termination. A cure of the default does not
relieve the defaulting member state of obligations or
liabilities incurred during the period of default.
D. Termination of compact membership 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 member state's legislature
and each of the member states.
E. A state that has been terminated from the
compact 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. 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.
G. 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
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commission has its principal offices. The prevailing party
shall be awarded all costs of such litigation, including
reasonable attorney fees.
H. Dispute resolution shall be conducted as
follows:
(1) upon request by a member state, the
commission shall attempt to resolve disputes related to the
compact that arise among member states and between member and
nonmember states; and
(2) the commission shall promulgate a rule
providing for both mediation and binding dispute resolution for
disputes as appropriate.
I. Enforcement shall be carried out as follows:
(1) the commission, in the reasonable exercise
of its discretion, shall enforce the provisions and rules of
this compact;
(2) by majority vote, the commission may
initiate legal action in the United States district court for
the District of Columbia or the federal district where the
commission has its principal offices against a member state in
default to enforce compliance with the provisions of the
compact and its promulgated rules and bylaws. The relief
sought may include both injunctive relief and damages. In the
event judicial enforcement is necessary, the prevailing party
shall be awarded all costs of such litigation, including
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reasonable attorney fees; and
(3) the remedies in this subsection shall not
be the exclusive remedies of the commission, and the commission
may pursue any other remedies available under federal or state
law.
SECTION 13 -- DATE OF IMPLEMENTATION OF THE COUNSELING COMPACT
COMMISSION AND ASSOCIATED RULES, WITHDRAWAL AND AMENDMENT
A. The compact shall come into effect on the date
on which the compact statute is enacted into law by the tenth
member state. The provisions, which become effective at that
time, shall be limited to the powers granted to the commission
relating to assembly and the promulgation of rules.
Thereafter, the commission shall meet and exercise rulemaking
powers necessary for the implementation and administration of
the compact.
B. Any state that joins the compact subsequent to
the commission's initial adoption of the rules shall be subject
to the rules 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.
C. To withdraw from this compact, a member state
shall enact a statute repealing this statute, and withdrawal:
(1) shall take effect six months after the
enactment of the repealing statute; and
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(2) shall not affect the continuing
requirement of the withdrawing state's licensing board to
comply with the investigative and adverse action reporting
requirements of the compact prior to the effective date of
withdrawal.
D. Nothing contained in this compact shall be
construed to invalidate or prevent any professional counseling
licensure agreement or other cooperative arrangement between a
member state and a nonmember state that does not conflict with
the provisions of this compact.
E. This compact may be amended by the member
states. The amendment shall become effective and binding upon
a member state when it is enacted into the laws of all member
states.
SECTION 14 -- CONSTRUCTION AND SEVERABILITY
This compact shall be liberally construed to effectuate
its purposes. The provisions of this compact shall be
severable, and if any part of this compact is declared to be
contrary to the constitution of any member state or of the
United States or its applicability to any government, agency,
person or circumstance is held invalid, the validity of the
remainder of this compact and its applicability to any
government, agency, person or circumstance shall not be
affected. If this compact is held contrary to the constitution
of any member state, the compact shall remain in full force and
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effect as to the remaining member states and in full force and
effect as to the member state affected as to all severable
matters.
SECTION 15 -- BINDING EFFECT OF COMPACT AND OTHER LAWS
A. A licensee providing professional counseling
services in a remote state under the privilege to practice
shall adhere to the laws and regulations, including scope of
practice, of the remote state.
B. Nothing in this compact prevents the enforcement
of any other law of a member state that is consistent with the
compact.
C. Any laws in a member state in conflict with the
compact are superseded to the extent of the conflict.
D. Any lawful actions of the commission, including
all rules and bylaws properly promulgated by the commission,
are binding upon the member states.
E. All permissible agreements between the
commission and the member states are binding in accordance with
their terms.
F. In the event any provision of the compact
exceeds the constitutional limits imposed on the legislature of
any member state, the provision shall be ineffective to the
extent of the conflict with the constitutional provision in
question in that member state.".
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