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HOUSE BILL 441
57
TH LEGISLATURE
-
STATE
OF
NEW
MEXICO
-
FIRST SESSION
,
2025
INTRODUCED BY
Gail Armstrong and Elizabeth "Liz" Thomson and Jenifer Jones
and Rebecca Dow
AN ACT
RELATING TO INTERGOVERNMENTAL AGREEMENTS; ENACTING THE DENTIST
AND DENTAL HYGIENIST INTERSTATE COMPACT.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO:
SECTION 1. [NEW MATERIAL] SHORT TITLE.--This act may be
cited as the "Dentist and Dental Hygienist Interstate Compact".
SECTION 2. [NEW MATERIAL] PURPOSE.--The purposes of this
compact are to facilitate the interstate practice of dentistry
and dental hygiene and improve public access to dentistry and
dental hygiene services by providing dentists and dental
hygienists licensed in a participating state the ability to
practice in participating states in which they are not
licensed. The compact does this by establishing a pathway for
a dentists and
dental hygienists licensed in a participating state to obtain a
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compact privilege that authorizes them to practice in another
participating state in which they are not licensed. The
compact enables participating states to protect the public
health and safety with respect to the practice of such dentists
and dental hygienists through the state's authority to regulate
the practice of dentistry and dental hygiene in the state. The
compact:
A. enables dentists and dental hygienists who
qualify for a compact privilege to practice in other
participating states without satisfying burdensome and
duplicative requirements associated with securing a license to
practice in those states;
B. promotes mobility and addresses workforce
shortages through each participating state's acceptance of a
compact privilege to practice in that state;
C. increases public access to qualified, licensed
dentists and dental hygienists by creating a responsible,
streamlined pathway for licensees to practice in participating
states;
D. enhances the ability of participating states to
protect the public's health and safety;
E. does not interfere with licensure requirements
established by a participating state;
F. facilitates the sharing of licensure and
disciplinary information among participating states;
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G. requires dentists and dental hygienists who
practice in a participating state pursuant to a compact
privilege to practice within the scope of practice authorized
in that state;
H. extends the authority of a participating state
to regulate the practice of dentistry and dental hygiene within
its borders to dentists and dental hygienists who practice in
the state through a compact privilege;
I. promotes the cooperation of a participating
state in regulating the practice of dentistry and dental
hygiene within participating states; and
J. facilitates the relocation of military members
and their spouses who are licensed to practice dentistry or
dental hygiene."
SECTION 3. [NEW MATERIAL] DEFINITIONS.--As used in the
Dentist and Dental Hygienist Interstate Compact, unless the
context requires otherwise, the following definitions apply:
A. "active military member" means a person with
full-time duty status in the armed forces of the United States,
including members of the national guard and reserve;
B. "adverse action" means disciplinary action or
encumbrance imposed on a license or compact privilege by a
state licensing authority;
C. "alternative program" means a non-disciplinary
monitoring or practice remediation process applicable to a
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dentist or dental hygienist approved by a state licensing
authority of a participating state in which the dentist or
dental hygienist is licensed, including programs to which
licensees with substance abuse or addiction issues are referred
in lieu of adverse action;
D. "clinical assessment" means an examination or
process required for licensure as a dentist or dental
hygienist, as applicable, that provides evidence of clinical
competence in dentistry or dental hygiene;
E. "commissioner" means an individual appointed by
a participating state to serve as a member of the commission
for that participating state;
F. "compact" means the Dentist and Dental Hygienist
Interstate Compact;
G. "compact privilege" means the authorization
granted by a remote state to allow a licensee from a
participating state to practice as a dentist or a dental
hygienist in a remote state;
H. "continuing professional development" means a
requirement as a condition of license renewal to provide
evidence of successful participation in educational or
professional activities relevant to practice or area of work;
I. "criminal background check" means the submission
of fingerprints or other biometric-based information for a
license applicant for the purpose of obtaining that applicant's
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criminal history record information, as defined in 28 C.F.R.
Section 20.3(d) from the federal bureau of investigation and
the state's criminal history record repository as defined in 28
C.F.R. Section 20.3;
J. "data system" means the commission's repository
of information about licensees, including examination,
licensure, investigative, compact privilege, adverse action and
alternative program information;
K. "dental hygienist" means an individual who is
licensed by a state licensing authority to practice dental
hygiene;
L. "dentist" means an individual who is licensed by
a state licensing authority to practice dentistry;
M. "dentist and dental hygienist compact
commission" or "commission" means a joint government agency
established by this compact composed of each participating
state and a national administrative body composed of a
commissioner from each participating state;
N. "encumbered license" means a license that a
state licensing authority has limited in a way other than
through an alternative program;
O. "executive board" means the chair, vice chair,
secretary and treasurer and any other commissioners as may be
determined by commission rule or bylaw;
P. "jurisprudence requirement" means the assessment
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of an individual's knowledge of the laws and rules governing
the practice of dentistry or dental hygiene, as applicable, in
a state;
Q. "license" means current authorization by a
state, other than authorization pursuant to a compact
privilege, or other privilege for an individual to practice as
a dentist or dental hygienist in that state;
R. "licensee" means an individual who holds an
unrestricted license from a participating state to practice as
a dentist or dental hygienist in that state;
S. "model compact" means the model for the Dentist
and Dental Hygienist Interstate Compact on file with the
council of state governments or other entity as designated by
the commission;
T. "participating state" means a state that has
enacted the Dentist and Dental Hygienist Interstate Compact and
been admitted to the commission in accordance with the
provisions of this compact and commission rules;
U. "qualifying license" means a license that is not
an encumbered license issued by a participating state to
practice dentistry or dental hygiene;
V. "remote state" means a participating state where
a licensee who is not licensed as a dentist or dental hygienist
is exercising or seeking to exercise the compact privilege;
W. "rule" means a regulation promulgated by an
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entity that has the force of law;
X. "scope of practice" means the procedures,
actions and processes that a dentist or dental hygienist
licensed in a state is permitted to undertake in that state and
the circumstances under which a licensee is permitted to
undertake those procedures, actions and processes, which may be
established through means including statute, regulations, case
law and other processes available to the state licensing
authority or other government agency;
Y. "significant investigative information" means
information, records and documents received or generated by a
state licensing authority pursuant to an investigation for
which a determination has been made that there is probable
cause to believe that a licensee has violated a statute or
regulation that is considered more than a minor infraction for
which the state licensing authority could pursue adverse action
against the licensee;
Z. "state" means any state, commonwealth, district
or territory of the United States of America that regulates the
practices of dentistry and dental hygiene; and
AA. "state licensing authority" means an agency or
other entity of a state that is responsible for the licensing
and regulation of dentists or dental hygienists.
SECTION 4. [NEW MATERIAL] STATE PARTICIPATION IN THE
COMPACT.--
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A. In order to join the compact and thereafter
continue as a participating state, a state shall:
(1) enact a compact that is not materially
different from the model compact as determined in accordance
with commission rules;
(2) participate fully in the commission's data
system;
(3) have a mechanism in place for receiving
and investigating complaints about licensees and license
applicants;
(4) notify the commission, in compliance with
the terms of the compact and commission rules, of any adverse
action or the availability of significant investigative
information regarding a licensee or license applicant;
(5) fully implement a criminal background
check requirement, within a time frame established by
commission rule, by receiving the results of a qualifying
criminal background check;
(6) comply with the commission rules
applicable to a participating state;
(7) accept the national board examinations of
the joint commission on national dental examinations or another
examination accepted by commission rule as a licensure
examination;
(8) accept for licensure that applicants for a
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dental license graduate from a predoctoral dental education
program accredited by the commission on dental accreditation or
another accrediting agency recognized by the United States
department of education for the accreditation of dentistry and
dental hygiene education programs, leading to the doctor of
dental surgery or doctor of dental medicine degree;
(9) accept for licensure that applicants for a
dental hygiene license graduate from a dental hygiene education
program accredited by the commission on dental accreditation or
another accrediting agency recognized by the United States
department of education for the accreditation of dentistry and
dental hygiene education programs;
(10) require for licensure that applicants
successfully complete a clinical assessment;
(11) have continuing professional development
requirements as a condition for license renewal; and
(12) pay a participation fee for the
commission as established by commission rule.
B. Providing alternative pathways for an individual
to obtain an unrestricted license does not disqualify a state
from participating in the compact.
C. When conducting a criminal background check, the
state licensing authority shall:
(1) consider that criminal background
information in making a licensure decision;
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(2) maintain documentation of completion of a
criminal background check and criminal background information to
the extent allowed by state and federal law; and
(3) report to the commission whether it has
completed a criminal background check and whether the individual
was granted or denied a license.
D. A licensee of a participating state who has a
qualifying license in that state and does not hold an encumbered
license in any other participating state shall be issued a
compact privilege in a remote state in accordance with the
provisions of the compact and commission rules. If a remote
state has a jurisprudence requirement, a compact privilege shall
not be issued to the licensee unless the licensee has satisfied
the jurisprudence requirement.
SECTION 5. [NEW MATERIAL] COMPACT PRIVILEGE.--
A. To obtain and exercise a compact privilege under
the terms and provisions of this compact, a licensee shall:
(1) have a qualifying license as a dentist or
dental hygienist in a participating state;
(2) be eligible for a compact privilege in
accordance with Subsections D, G and H of this section;
(3) submit to an application process whenever
the licensee is seeking a compact privilege;
(4) pay any applicable commission and remote
state fees for a compact privilege;
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(5) meet any jurisprudence requirement
established by a remote state in which the licensee is seeking a
compact privilege;
(6) have passed a national board examination
of the joint commission on national dental examinations or
another examination accepted by commission rule;
(7) for a dentist, have graduated from a
predoctoral dental education program accredited by the
commission on dental accreditation or another accrediting agency
recognized by the United States department of education for the
accreditation of dentistry and dental hygiene education
programs, leading to the doctor of dental surgery or doctor of
dental medicine degree;
(8) for a dental hygienist, have graduated
from a dental hygiene education program accredited by the
commission on dental accreditation or another accrediting agency
recognized by the United States department of education for the
accreditation of dentistry and dental hygiene education
programs;
(9) have successfully completed a clinical
assessment for licensure;
(10) report to the commission adverse action
taken by any nonparticipating state when applying for a compact
privilege and otherwise within thirty days from the date the
adverse action is taken;
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(11) report to the commission when applying
for a compact privilege the address of the licensee's primary
residence and thereafter immediately report to the commission
any change in the address of the licensee's primary residence;
and
(12) consent to accept service of process by
mail at the licensee's primary residence on record with the
commission with respect to any action brought against the
licensee by the commission or a participating state and consent
to accept service of a subpoena by mail at the licensee's
primary residence on record with the commission with respect to
any action brought or investigation conducted by the commission
or a participating state.
B. The licensee shall comply with the requirements
of Subsection A of this section to maintain the compact
privilege and, if those requirements are met, the compact
privilege shall continue as long as the licensee maintains a
qualifying license in the state through which the licensee
applied for the compact privilege and pays any applicable
compact privilege renewal fees.
C. A licensee providing dentistry or dental hygiene
in a remote state under the compact privilege shall function
within the scope of practice authorized by the remote state for
a dentist or dental hygienist licensed in that state.
D. A licensee providing dentistry or dental hygiene
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services pursuant to a compact privilege is subject to the
remote state's regulatory authority. A remote state may, in
accordance with due process and that state's laws, by adverse
action revoke or remove a licensee's compact privilege for a
specific period of time and impose fines or take any other
necessary actions to protect the health and safety of its
citizens. If a remote state imposes an adverse action against a
compact privilege that limits the compact privilege, that
adverse action applies to all compact privileges in all remote
states. A licensee whose compact privilege in a remote state is
removed for a specified period of time is not eligible for a
compact privilege in any other remote state until the specific
time for removal of the compact privilege has passed and all
encumbrance requirements are satisfied.
E. If a license in a participating state is an
encumbered license, the licensee shall lose the compact
privilege in a remote state and shall not be eligible for a
compact privilege in any remote state until the license is no
longer encumbered.
F. Once an encumbered license in a participating
state is restored to good standing, the licensee must meet the
requirements of Subsection A of this section to obtain a compact
privilege in a remote state.
G. If a licensee's compact privilege in a remote
state is removed by the remote state, the individual shall lose
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or be ineligible for the compact privilege in any remote state
until the following occur:
(1) the specific period of time for which the
compact privilege was removed has ended; and
(2) all conditions for removal of the compact
privilege have been satisfied.
H. Once the requirements of Subsection G of this
section have been met, the licensee must meet the requirements
in Subsection A of this section to obtain a compact privilege in
a remote state.
SECTION 6. [NEW MATERIAL] ACTIVE MILITARY MEMBER OR
ACTIVE MILITARY MEMBER'S SPOUSE.--An active military member or
an active military member's spouse shall not be required to pay
to the commission for a compact privilege the fee otherwise
charged by the commission. If a remote state chooses to charge
a fee for a compact privilege, it may choose to charge a reduced
fee or no fee to an active military member or an active military
member's spouse for a compact privilege.
SECTION 7. [NEW MATERIAL] ADVERSE ACTIONS.--
A. A participating state in which a licensee is
licensed shall have exclusive authority to impose adverse action
against the qualifying license issued by that participating
state.
B. A participating state may take adverse action
based on the significant investigative information of a remote
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state, so long as the participating state follows its own
procedures for imposing an adverse action.
C. Nothing in this compact shall override a
participating state's decision that participation in an
alternative program may be used in lieu of adverse action and
that such participation shall remain nonpublic if required by
the participating state's laws. Participating states shall
require licensees who enter any alternative program in lieu of
discipline to agree not to practice pursuant to a compact
privilege in any other participating state during the term of
the alternative program without prior authorization from the
other participating state.
D. Any participating state in which a licensee is
applying to practice or is practicing pursuant to a compact
privilege may investigate actual or alleged violations of the
statutes and regulations authorizing the practice of dentistry
or dental hygiene in any other participating state in which the
dentist or dental hygienist holds a license or compact
privilege.
E. A remote state may take adverse actions as set
forth in Subsection D of this section against a licensee's
compact privilege in the state.
F. In furtherance of its rights and responsibilities
under the compact and commission rules, issue subpoenas for both
hearings and investigations that require the attendance and
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testimony of witnesses and the production of evidence.
Subpoenas issued by a state licensing authority in a
participating state for the attendance and testimony of
witnesses, or the production of evidence from another
participating state, shall be enforced in the latter state by
any court of competent jurisdiction, according to the practice
and procedure of that court applicable to subpoenas issued in
proceedings pending before it. The issuing authority shall pay
any witness fees, travel expenses, mileage and other fees
required by the service statutes of the state where the
witnesses or evidence is located.
G. If otherwise permitted by state law, recover from
the licensee the costs of investigations and disposition of
cases resulting from an adverse action taken against that
licensee.
H. The following conditions apply to joint
investigations:
(1) in addition to the authority granted to a
participating state by the state's dentist or dental hygienist
licensure act or other applicable state law, a participating
state may jointly investigate licensees with other participating
states; and
(2) participating states shall share any
significant investigative information, litigation or
compliance materials in furtherance of a joint or individual
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investigation initiated under the compact.
I. The following conditions apply to the authority
to continue an investigation:
(1) after a licensee's compact privilege in a
remote state is terminated, the remote state may continue an
investigation of the licensee that began when the licensee had a
compact privilege in that remote state; and
(2) if an investigation yields what would be
significant investigative information had the licensee continued
to have a compact privilege in that remote state, the remote
state shall report the presence of that information to the data
system as required by Paragraph (6) of Subsection B of Section 9
of this compact as if it were significant investigative
information.
SECTION 8. [NEW MATERIAL] ESTABLISHMENT AND OPERATION OF
THE DENTIST AND DENTAL HYGIENIST COMPACT COMMISSION.--
A. The participating states hereby create and
establish a joint government agency whose membership consists of
all participating states that have enacted the compact. The
"dentist and dental hygienist compact commission" is an
instrumentality of the participating states acting jointly and
not an instrumentality of any one state. The commission shall
come into existence on or after the effective date of the
compact as set forth in Subsection A of Section 12 of this
compact.
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B. The following conditions apply to participation,
voting and meetings:
(1) each participating state shall have one
commissioner selected by the participating state's state
licensing authority or, if the participating state has more than
one state licensing authority, selected collectively by those
state licensing authorities;
(2) a commissioner shall be a member or
designee of the state licensing authority that selected the
commissioner;
(3) the commission may by rule or bylaw
establish a term of office for commissioners and by rule or
bylaw establish term limits;
(4) the commission may recommend to a state
licensing authority removal or suspension of an individual as
the state's commissioner;
(5) a participating state's state licensing
authority or authorities, as applicable, shall fill any vacancy
of its commissioner within sixty days of the vacancy;
(6) each commissioner shall be entitled to one
vote on all matters that are voted upon by the commission; and
(7) the commission shall meet at least once
during each calendar year.
C. The commission may:
(1) establish the fiscal year of the
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commission;
(2) establish code of conduct and conflict of
interest policies;
(3) adopt rules and bylaws;
(4) maintain its financial records in
accordance with the bylaws;
(5) meet and take such actions as are
consistent with the provisions of this compact and the
commission's rules and bylaws;
(6) initiate and conclude legal proceedings or
actions in the name of the commission; provided that the
standing of any state licensing authority to sue or be sued
under applicable law shall not be affected;
(7) maintain and certify records and
information provided to a participating state as the
authenticated business records of the commission and designate
an individual to do so on the commission's behalf;
(8) purchase and maintain insurance and bonds;
(9) borrow, accept or contract for services of
personnel, including, but not limited to, employees of a
participating state;
(10) conduct an annual financial review;
(11) hire employees, elect or appoint
officers, fix compensation, define duties, grant such
individuals appropriate authority to carry out the purposes of
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the compact and establish the commission's personnel policies
and programs relating to conflicts of interest, qualifications
of personnel and other related personnel matters;
(12) as set forth in commission rules, charge
a fee to a licensee for the grant of a compact privilege, and
thereafter, charge the licensee a compact privilege renewal fee
for each renewal period in which that licensee exercises or
intends to exercise the compact privilege; provided that nothing
in this paragraph shall be construed to prevent a remote state
from charging a licensee a fee for a compact privilege or
renewals of a compact privilege or a fee for the jurisprudence
requirement if the remote state imposes a requirement for the
grant of a compact privilege;
(13) accept any and all appropriate gifts,
donations, grants of money, other sources of revenue, equipment,
supplies, materials and services; and receive, use and dispose
of the same; provided that at all times the commission shall
avoid any appearance of impropriety or conflict of interest;
(14) lease, purchase, retain, own, hold,
improve or use any property, real, personal or mixed, or any
undivided interest in the property;
(15) sell, convey, mortgage, pledge, lease,
exchange, abandon or otherwise dispose of any property, real,
personal or mixed;
(16) establish a budget and make expenditures;
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(17) borrow money;
(18) appoint committees, including standing
committees, which may be composed of members, state regulators,
state legislators or their representatives, consumer
representatives and other interested persons as may be
designated pursuant to this compact and the commission's bylaws;
(19) provide and receive information from and
cooperate with law enforcement agencies;
(20) elect a chair, vice chair, secretary and
treasurer and other officers of the commission as provided in
the commission's bylaws;
(21) establish and elect an executive board;
(22) adopt and provide to the participating
states an annual report;
(23) determine whether a state's enacted
compact is materially different from the model compact language
such that the state would not qualify for participation in the
compact; and
(24) perform other functions as may be
necessary or appropriate to achieve the purposes of this
compact.
D. The following conditions apply to meetings of the
commission:
(1) all meetings that are not closed pursuant
to this subsection shall be open to the public, and notice of
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public meetings shall be posted on the commission's website at
least thirty days prior to the meeting;
(2) notwithstanding Paragraph (1) of this
subsection, the commission may convene an emergency public
meeting by providing at least twenty-four hours' prior notice on
the commission's website or any other means pursuant to the
commission's rules; provided that the commission's legal counsel
certifies that the emergency public meeting was called for a
permissible reason for which it may dispense with notice of
proposed rulemaking under Subsection H of Section 10 of this
compact;
(3) notice of all commission meetings shall
provide the time, date and location of the meeting, and if the
meeting is to be held or accessible via telecommunication, video
conference or other electronic means, the notice shall include
the mechanism for access to the meeting through such means; and
(4) a closed, nonpublic meeting may be held
for the commission to receive legal advice or to discuss
matters, including:
(a) noncompliance of a participating
state with its obligations under the compact;
(b) the employment, compensation,
discipline or other matters, practices or procedures related to
specific employees or other matters related to the commission's
internal personnel practices and procedures;
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(c) current or threatened discipline of a
licensee or compact privilege holder by the commission or by a
participating state's licensing authority;
(d) current, threatened or reasonably
anticipated litigation;
(e) negotiation of contracts for the
purchase, lease or sale of goods, services or real estate;
(f) accusations that any person of a has
committed a crime or the formal censure of any person;
(g) trade secrets or commercial or
financial information that is privileged or confidential;
(h) information of a personal nature
where disclosure would constitute a clearly unwarranted invasion
of personal privacy;
(i) investigative records compiled for
law enforcement purposes;
(j) information related to an
investigative report prepared by or on behalf of or for use of
the commission or other committee charged with the
responsibility of investigation or determination of compliance
issues pursuant to the compact;
(k) legal advice;
(l) matters specifically exempted from
disclosure to the public by federal or participating state law;
and
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(m) other matters as promulgated by the
commission by rule.
E. If a meeting or portion of a meeting is closed to
the public, the presiding officer shall state that the meeting
will be closed and make reference to each relevant exempting
provision, and such reference shall be recorded in the meeting's
minutes.
F. The commission shall keep minutes that fully and
clearly describe all matters discussed in a meeting and provide
a full and accurate summary of actions taken, and the reasons
for the actions, including a description of the views expressed,
and all documents considered in connection with an action shall
be identified in the minutes, and the minutes and documents of a
closed meeting shall remain under seal, subject to release only
by a majority vote of the commission or order of a court of
competent jurisdiction.
G. The financing of the commission shall be carried
out as follows. The commission:
(1) shall pay, or provide for the payment of,
the reasonable expenses of its establishment, organization and
ongoing activities;
(2) may accept any and all appropriate sources
of revenue, donations and grants of money, equipment, supplies,
materials and services;
(3) may levy on and collect an annual
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assessment from each participating state and impose fees on
licensees of participating states when a compact privilege is
granted to cover the cost of the operations and activities of
the commission and its staff, which must be in a total amount
sufficient to cover its annual budget as approved each
fiscal year for which sufficient revenue is not provided by
other sources with the aggregate annual assessment amount for
participating states allocated based upon a formula that the
commission shall promulgate by rule;
(4) shall not incur obligations of any kind
prior to securing the funds adequate to meet the same nor pledge
the credit of any participating state, except by and with the
authority of the participating state; and
(5) shall keep accurate accounts of all
receipts and disbursements, subject to the financial review and
accounting procedures established under its bylaws and subject
to an annual financial review by a certified or licensed public
accountant, the report of which shall be included in the annual
report of the commission.
H. The executive board may act on behalf of the
commission according to the terms of this compact. The powers,
duties and responsibilities of the executive board include:
(1) overseeing the day-to-day activities of
the administration of the compact, including compliance with the
provisions of the compact and the commission's rules and bylaws;
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(2) recommending to the commission changes to
the commission's rules or bylaws, changes to the compact
legislation, fees charged to participating states, fees charged
to licensees and other fees;
(3) ensuring that compact administration
services are appropriately provided, including by contract;
(4) preparing and recommending the budget for
the commission;
(5) maintaining financial records on behalf of
the commission;
(6) monitoring compact compliance of
participating states and providing compliance reports to the
commission;
(7) establishing additional committees as
necessary;
(8) exercising the powers and duties of the
commission during the interim period between commission
meetings, except for adopting or amending rules, adopting or
amending bylaws and exercising any other powers and duties
expressly reserved to the commission by rule or bylaw; and
(9) other duties as provided in the rules or
bylaws of the commission.
I. The executive board of the commission shall be
composed of up to seven voting members, including:
(1) the chair, vice chair, secretary and
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treasurer; and
(2) up to three additional members who may be
elected by the commission from the current membership of the
commission.
J. The executive board of the commission may remove
a member of the executive board as provided in the commission's
bylaws.
K. The executive board of the commission shall meet
at least annually and ensure that:
(1) meetings at which the executive board of
the commission takes or intends to take formal action on a
matter be open to the public, except when dealing with any of
the matters covered under Paragraph (4) of Subsection D of this
section; and
(2) five business days' notice of public
meetings are provided by posting notice on the commission's
website and as it may otherwise determine to provide notice to
persons with an interest in the public matters that the
executive board intends to address at those meetings.
L. The executive board of the commission may hold an
emergency meeting when acting for the commission to:
(1) meet an imminent threat to public health,
safety or welfare;
(2) prevent a loss of commission or
participating state funds; or
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(3) protect public health and safety.
M. The members, officers, executive director,
employees and representatives of the commission shall be immune
from suit and liability, both personally and in their official
capacity, for any claim for damage to or loss of property or
personal injury or other civil liability caused by or arising
out of any actual or alleged act, error or omission that
occurred or that the person against whom the claim is made had a
reasonable basis for believing occurred within the scope of
commission employment, duties or responsibilities; provided that
nothing in this subsection shall be construed to protect any
such person from suit or liability for any damage, loss, injury
or liability caused by the intentional or willful or wanton
misconduct of that person; and provided further that the
procurement of insurance of any type by the commission shall not
compromise or limit the immunity granted by this subsection.
N. 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 as determined by the commission that the
person against whom the claim is made had a reasonable basis for
believing occurred within the scope of commission employment,
duties or responsibilities; provided that nothing in this
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subsection shall be construed to prohibit that person from
retaining the person's own counsel at the person's own expense;
and provided further that the actual or alleged act, error or
omission did not result from that person's intentional or
willful or wanton misconduct.
O. Notwithstanding Subsection L of this section,
should any member, officer, executive director, employee or
representative of the commission be held liable for the amount
of any settlement or judgment arising out of any actual or
alleged act, error or omission that occurred within the scope of
that individual's employment, duties or responsibilities for the
commission, or that the person to whom that individual is liable
had a reasonable basis for believing occurred within the scope
of the individual's employment, duties or responsibilities for
the commission, the commission shall indemnify and hold harmless
that individual; provided that the actual or alleged act, error
or omission did not result from the intentional or willful or
wanton misconduct of the individual.
P. Nothing in this compact shall be:
(1) construed as a limitation on the liability
of any licensee for professional malpractice or misconduct,
which shall be governed solely by any other applicable state
laws;
(2) interpreted to waive or otherwise abrogate
a participating state's state action immunity or state action
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affirmative defense with respect to antitrust claims under the
federal Sherman Act, the federal Clayton Act or any other state
or federal antitrust or anti-competitive law or regulation; or
(3) construed to be a waiver of sovereign
immunity by the participating states or by the commission.
SECTION 9. [NEW MATERIAL] DATA SYSTEM.--
A. The commission shall provide for the development,
maintenance, operation and use of a coordinated database and
reporting system containing licensure and adverse action
information and significant investigative information on all
licensees and applicants for a license in participating states.
B. Notwithstanding any other provision of state law
to the contrary, a participating state shall submit a uniform
data set to the data system on all individuals to whom this
compact is applicable as required by the rules of the
commission, including:
(1) identifying information;
(2) licensure data;
(3) adverse actions against a licensee,
license applicant or compact privilege and information related
thereto;
(4) nonconfidential information related to
alternative program participation, the beginning and ending
dates of such participation and other information related to
such participation;
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(5) any denial of an application for licensure
and the reasons for such denial, excluding the reporting of any
criminal history record information where prohibited by law;
(6) the presence of significant investigative
information; and
(7) other information that may facilitate the
administration of this compact or the protection of the public,
as determined by the rules of the commission.
C. The records and information provided to a
participating state pursuant to this compact or through the data
system, when certified by the commission or an agent of the
commission, constitute the authenticated business records of the
commission and shall be entitled to any associated hearsay
exception in any relevant judicial, quasi-judicial or
administrative proceedings in a participating state.
D. Significant investigative information pertaining
to a licensee in any participating state shall only be available
to other participating states.
E. It is the responsibility of the participating
states to monitor the database to determine whether adverse
action has been taken against a licensee or license applicant.
Adverse action information pertaining to a licensee or license
applicant in any participating state shall be available to any
other participating state.
F. Participating states contributing information to
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the data system may designate information that may not be shared
with the public without the express permission of the
contributing state.
G. Any information submitted to the data system that
is subsequently expunged pursuant to federal law or the laws of
the participating state contributing the information shall be
removed from the data system.
SECTION 10. [NEW MATERIAL] RULEMAKING.--
A. The commission shall promulgate reasonable rules
in order to effectively and efficiently implement and administer
the purposes and provisions of the compact. A commission rule
shall be invalid and have no force or effect only if a court of
competent jurisdiction holds that the rule is invalid because
the commission exercised its rulemaking authority in a manner
that is beyond the scope and purposes of the compact or the
powers granted in the compact or based upon another applicable
standard of review.
B. The rules of the commission shall have the force
of law in each participating state; provided, however, that
where the rules of the commission conflict with the laws of the
participating state that establish the participating state's
scope of practice as held by a court of competent jurisdiction,
the rules of the commission shall be ineffective in that state
to the extent of the conflict.
C. The commission shall exercise its rulemaking
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powers pursuant to the criteria set forth in this section and
the rules adopted pursuant to this section. Rules shall become
binding as of the date specified by the commission for each
rule.
D. If a majority of the state legislatures of the
participating states rejects a commission rule or portion of a
commission rule, by enactment of a statute or resolution in the
same manner used to adopt the compact, within four years of the
date of adoption of the rule, then the rule shall have no
further force and effect in any participating state or to any
state applying to participate in the compact.
E. Rules shall be adopted at a regular or special
meeting of the commission.
F. Prior to adoption of a proposed rule, the
commission shall hold a public hearing and allow persons to
provide oral and written comments, data, facts, opinions and
arguments.
G. Prior to adoption of a proposed rule, and at
least thirty days in advance of the meeting at which the
commission will hold a public hearing on the proposed rule, the
commission shall provide a notice of proposed rulemaking:
(1) on the commission's website or other
publicly accessible platform;
(2) to persons who have requested notice of
the commission's proposed rulemaking; and
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(3) in other ways as the commission may by
rule specify.
H. The notice of proposed rulemaking shall include:
(1) the time, date and location of the public
hearing at which the commission will hear public comments on the
proposed rule and, if different, the time, date and location of
the meeting where the commission will consider and vote on the
proposed rule;
(2) if the hearing is held via
telecommunication, video conference or other electronic means,
the commission shall include the mechanism for access to the
hearing in the notice of proposed rulemaking;
(3) the text of the proposed rule and the
reason for the proposed rule;
(4) a request for comments on the proposed
rule from any interested person; and
(5) the manner in which interested persons may
submit written comments.
I. All hearings shall be recorded. A copy of the
recording and all written comments and documents received by the
commission in response to the proposed rule shall be available
to the public.
J. Nothing in this section shall be construed as
requiring a separate hearing on each commission rule. Rules may
be grouped for the convenience of the commission at hearings
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required by this section.
K. The commission shall, by majority vote of all
commissioners, take final action on the proposed rule based on
the rulemaking record. The commission:
(1) may adopt changes to the proposed rule;
provided that the changes do not enlarge the original purpose of
the proposed rule;
(2) shall provide an explanation of the
reasons for substantive changes made to the proposed rule as
well as reasons for substantive changes not made that were
recommended by public commenters; and
(3) shall determine a reasonable effective
date for the rule, except for an emergency as provided in
Subsection L of this section, and the effective date of the rule
shall be no sooner than thirty days after the commission issuing
the notice that it adopted or amended the rule.
L. Upon determination that an emergency exists, the
commission may consider and adopt an emergency rule with twenty-
four hours' notice, with opportunity to comment; provided that
the usual rulemaking procedures provided pursuant to the compact
and this section shall be retroactively applied to the rule as
soon as reasonably possible, in no event later than ninety days
after the effective date of the rule. For the purposes of this
subsection, an emergency rule is one that must be adopted
immediately in order to:
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(1) meet an imminent threat to public health,
safety or welfare;
(2) prevent a loss of commission or
participating state funds;
(3) meet a deadline for the promulgation of a
rule that is established by federal law or rule; or
(4) protect public health and safety.
M. The commission or an authorized committee of the
commission may direct revisions to a previously adopted rule for
purposes of correcting typographical errors, errors in format,
errors in consistency or grammatical errors. Public notice of
any revisions shall be posted on the commission's website. 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 to a rule shall be made
in writing and delivered to the commission prior to the end of
the notice period. If no challenge is made, the revision shall
take effect without further action. If the revision is
challenged, the revision shall not take effect without the
approval of the commission.
N. No participating state's rulemaking requirements
shall apply under this compact.
SECTION 11. [NEW MATERIAL] OVERSIGHT, DISPUTE RESOLUTION
AND ENFORCEMENT.--
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A. The executive and judicial branches of state
government in each participating state shall enforce this
compact and take all actions necessary and appropriate to
implement the compact.
B. 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 commission may waive venue
and jurisdictional defenses to the extent it adopts or consents
to participate in alternative dispute resolution proceedings.
Nothing in this subsection shall affect or limit the selection
or propriety of venue in any action against a licensee for
professional malpractice, misconduct or any such similar matter.
C. The commission shall be entitled to receive
service of process in any proceeding regarding the enforcement
or interpretation of the compact or commission rule and shall
have standing to intervene in such a proceeding for all
purposes. Failure to provide the commission service of process
shall render a judgment or order void as to the commission, this
compact or promulgated rules.
D. Default, technical assistance and termination
shall be addressed by the commission.
E. If the commission determines that a participating
state has defaulted in the performance of its obligations or
responsibilities under this compact or the promulgated rules of
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the commission, the commission shall provide written notice to
the defaulting state. The notice of default shall describe the
default, the proposed means of curing the default and any other
action that the commission may take and offer training and
specific technical assistance regarding the default.
F. The commission shall provide a copy of the notice
of default to the other participating states.
G. If a state in default fails to cure the default,
the defaulting state may be terminated from the compact upon an
affirmative vote of a majority of the commissioners, and all
rights, privileges and benefits conferred on that state by this
compact may be terminated on the effective date of termination.
A cure of the default shall not relieve the offending state of
obligations or liabilities incurred during the period of
default.
H. Termination of participation in the compact shall
be imposed only after all other means of securing compliance
have been exhausted. Notice of intent to suspend or terminate
shall be given by the commission to the governor, the majority
and minority leaders of the defaulting state's legislature, the
defaulting state's state licensing authority or authorities, as
applicable, and each of the participating states' state
licensing authority or authorities, as applicable.
I. A state that has been terminated from the compact
is responsible for all assessments, obligations and liabilities
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incurred through the effective date of termination, including
obligations that extend beyond the effective date of
termination.
J. Upon the termination of a state's participation
in this compact, that state shall immediately provide notice to
all licensees of the state, including licensees of other
participating states issued a compact privilege to practice
within that state, of such termination. The terminated state
shall continue to recognize all compact privileges then in
effect in that state for a minimum of one hundred eighty days
after the date of said notice of termination.
K. 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.
L. The defaulting state may appeal the action of the
commission by petitioning the United States district court for
the District of Columbia or the federal district where the
commission has its principal offices. The prevailing party
shall be awarded all costs of such litigation, including
reasonable attorney fees.
M. Upon request by a participating state, the
commission shall attempt to resolve disputes related to the
compact that arise among participating states and between
participating states and nonparticipating states. The
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commission shall promulgate a rule providing for both mediation
and binding dispute resolution for disputes as appropriate.
N. Enforcement of the compact shall be conducted by
the commission. The commission, in the reasonable exercise of
its discretion, shall enforce the provisions of this compact and
the commission's rules.
O. By majority vote, the commission may initiate
legal action against a participating state in default in the
United States district court for the District of Columbia or the
federal district where the commission has its principal offices
to enforce compliance with the provisions of the compact and its
promulgated rules. The relief sought may include both
injunctive relief and damages. In the event judicial
enforcement is necessary, the prevailing party shall be awarded
all costs of such litigation, including reasonable attorney
fees. The remedies provided in this subsection shall not be the
exclusive remedies of the commission. The commission may pursue
any other remedies available under federal or the defaulting
participating state's law.
P. A participating state may initiate legal action
against the commission in the United States district court for
the District of Columbia or the federal district where the
commission has its principal offices to enforce compliance with
the provisions of the compact and its promulgated rules. The
relief sought may include both injunctive relief and damages.
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In the event judicial enforcement is necessary, the prevailing
party shall be awarded all costs of such litigation, including
reasonable attorney fees.
Q. No individual or entity other than a
participating state may enforce this compact against the
commission.
SECTION 12. [NEW MATERIAL] EFFECTIVE DATE, WITHDRAWAL AND
AMENDMENT.--
A. This compact shall come into effect on the date
on which the compact statute is enacted into law in the seventh
participating state.
B. On or after the effective date of this compact,
the commission shall convene and review the enactment of the
compact by each of the participating states to determine if the
statute enacted by each state is materially different than the
model compact. If the commission finds the enactment of a
participating state is materially different from the model
compact, the participating state shall be entitled to the
default process set forth in Section 11 of this compact.
C. If the commission later determines that a
participating state is in default, terminated or withdrew from
the compact, the commission shall remain in existence and the
compact shall remain in effect, even if the number of
participating states is fewer than seven.
D. Participating states shall be subject to the
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process set forth in Subsection B of this section to determine
if those states' enactments are materially different from the
model compact and whether those states qualify for participation
in the compact.
E. All actions taken for the benefit of the
commission or in furtherance of the purposes of the
administration of the compact prior to the effective date of the
compact or the commission coming into existence shall be
considered to be actions of the commission unless specifically
repudiated by the commission.
F. Any state that joins the compact subsequent to
the commission's initial adoption of the rules and bylaws shall
be subject to the commission's rules and bylaws as they exist on
the date on which the compact becomes law in that state. Any
rule that has been previously adopted by the commission shall
have the full force and effect of law on the day the compact
becomes law in that state.
G. Any participating state may withdraw from this
compact by enacting a statute repealing that state's enactment
of the compact; however:
(1) a participating state's withdrawal shall
not take effect until one hundred eighty days after enactment of
the repealing statute;
(2) withdrawal shall not affect the continuing
requirement of the withdrawing state's licensing authority or
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authorities to comply with the investigative and adverse action
reporting requirements of this compact prior to the effective
date of the withdrawal; and
(3) upon the enactment of a participating
state withdrawing from this compact, the state shall immediately
provide notice of the withdrawal to all licensees within that
state and, notwithstanding any subsequent statutory enactment to
the contrary, the withdrawing state shall continue to recognize
all compact privileges to practice within that state granted
pursuant to this compact for a minimum of one hundred eighty
days after the date of the notice of withdrawal.
H. Nothing in this compact shall be construed to
invalidate or prevent any licensure agreement or other
cooperative arrangement between a participating state and
a nonparticipating state that does not conflict with the
provisions of this compact.
I. This compact may be amended by the participating
states. No amendment to this compact shall become effective and
binding upon any participating state until it is enacted into
the laws of all participating states.
SECTION 13. [NEW MATERIAL] CONSTRUCTION AND
SEVERABILITY.--
A. This compact and the commission's rulemaking
authority shall be liberally construed so as to effectuate the
purposes and the implementation and administration of the
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compact. Provisions of the compact expressly authorizing or
requiring the promulgation of rules shall not be construed to
limit the commission's rulemaking authority solely for those
purposes.
B. The provisions of this compact shall be
severable, and if any phrase, clause, sentence or provision of
this compact is held by a court of competent jurisdiction to be
contrary to the constitution of any participating state, a state
seeking participation in the compact, or of the United States,
or the applicability thereof to any government, agency, person
or circumstance is held to be unconstitutional by a court of
competent jurisdiction, the validity of the remainder of this
compact and the applicability thereof to any other government,
agency, person or circumstance shall not be affected thereby.
C. Notwithstanding Subsection B of this section, the
commission may deny a state's participation in the compact or,
in accordance with the requirements of Subsection B of Section
10 of this compact, terminate a participating state's
participation in the compact if the commission determines that a
constitutional requirement of a participating state is a
material departure from the compact. Otherwise, if this compact
is held to be contrary to the constitution of any participating
state, the compact shall remain in full force and effect as to
the remaining participating states and in full force and effect
as to the participating state affected as to all severable
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matters.
SECTION 14. [NEW MATERIAL] CONSISTENT EFFECT AND CONFLICT
WITH OTHER STATE LAWS.--
A. Nothing in the compact shall prevent or inhibit
the enforcement of any other law of a participating state that
is not inconsistent with the compact.
B. Any laws, statutes, regulations or other legal
requirements in a participating state in conflict with this
compact are superseded to the extent of the conflict.
C. All permissible agreements between the commission
and the participating states are binding in accordance with
their terms.
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