88R16274 TYPED
By: Wilson H.B. No. 4857
A BILL TO BE ENTITLED
AN ACT
relating to the cosmetology licensure compact.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. The cosmetology licensure compact is adopted to
read as follows:
COSMETOLOGY LICENSURE COMPACT
ARTICLE 1- PURPOSE
The purpose of this Compact is to facilitate the interstate
practice and regulation of Cosmetology with the goal of improving
public access to, and the safety of, Cosmetology Services and
reducing unnecessary burdens related to Cosmetology licensure.
Through this Compact, the member states seek to establish a
regulatory framework which provides for a new multistate licensing
program. Through this new licensing program, the member states seek
to provide increased value and mobility to licensed Cosmetologists
in the member states, while ensuring the provision of safe,
effective, and reliable services to the public.
This Compact is designed to achieve the following objectives,
and the member states hereby ratify the same intentions by
subscribing hereto:
A. Provide opportunities for interstate practice by
Cosmetologists who meet uniform requirements for multistate
licensure;
B. Enhance the abilities of Member States to protect public
health and safety, and prevent fraud and unlicensed activity within
the profession;
C. Ensure and encourage cooperation between Member States
in the licensure and regulation of the Practice of Cosmetology;
D. Support relocating military members and their spouses;
E. Facilitate the exchange of information between Member
States related to the licensure, investigation, and discipline of
the Practice of Cosmetology;
F. Provide for meaningful dispute resolution while allowing
a Remote State to hold a Licensee accountable under the Remote
State's Practice Laws, even where that Licensee holds a Multistate
License; and
G. Provide for the licensure and mobility of the workforce
in the profession, while addressing the shortage of workers and
lessening the associated burdens on the Member States.
ARTICLE 2- DEFINITIONS
As used in this Compact, and except as otherwise provided,
the following definitions shall govern the terms herein:
A. "Active Duty Military" means any individual in full-time
duty status in the active uniformed service of the United States
including members of the National Guard and Reserve.
B. "Adverse Action" means any administrative, civil,
equitable, or criminal action permitted by a Member State's laws
which is imposed by a Licensing Authority or other regulatory body
against a or Cosmetologist, including actions against an
individual's licensure privilege such as revocation, suspension,
probation, monitoring of the Licensee, limitation of the Licensee's
practice, or any other Encumbrance on licensure affecting an
individual's ability to participate in the Cosmetology industry,
including the issuance of a cease and desist order.
C. "Authorization to Practice" means a legal authorization
associated with a Multistate License permitting the Practice of
Cosmetology in a remote state.
D. "Alternative Program" means a non-disciplinary
monitoring or prosecutorial diversion program approved by a Member
State's Licensing Authority.
E. "Background Check" means the submission of information
for an applicant for the purpose of obtaining that applicant's
criminal history record information, as further defined in 28
C.F.R. ยง 20.3(d), from the Federal Bureau of Investigation and the
agency responsible for retaining state criminal or disciplinary
history in the applicant's Home State.
F. "Commission" shall refer to the national administrative
body whose membership consists of all states that have enacted this
Compact, and which is known as the Cosmetology Licensure Compact
Commission.
G. "Cosmetologist" means an individual licensed in their
Home State to practice Cosmetology.
H. "Cosmetology", "Cosmetology Services", and the "Practice
of Cosmetology" mean the care and services provided by a
Cosmetologist as set forth in the Member State's statutes and
regulations in the State where the services are being provided.
I. "Current Significant Investigative Information" means:
1. Investigative Information that a Licensing
Authority, after an inquiry or investigation that complies with a
Member State's due process requirements, has reason to believe is
not groundless and, if proved true, would indicate a violation of
that State's laws regarding fraud or the Practice of Cosmetology;
or
2. Investigative Information that indicates that a
Licensee has engaged in fraud or represents an immediate threat to
public health and safety, regardless of whether the Licensee has
been notified and had an opportunity to respond.
J. "Data System" means a repository of information about
Licensees, including but not limited to license status,
Investigative Information, and Adverse Actions.
K. "Disqualifying Event" means any event which shall
disqualify an individual from holding a Multistate License under
this Compact, which the Commission may by Rule or order specify.
L. "Encumbered License" means a license in which an Adverse
Action restricts the Practice of Cosmetology by a Licensee, or
where said Adverse Action has been reported to the Commission.
M. "Encumbrance" means a revocation or suspension of, or any
limitation on, the full and unrestricted Practice of Cosmetology by
a Licensing Authority.
N. "Executive Committee" means a group of commissioners
elected or appointed to act on behalf of, and within the powers
granted to them by, the Commission.
O. "Home State" means the Member State which is a Licensee's
primary state of residence, and where that Licensee holds an active
and unencumbered license to practice Cosmetology.
P. "Investigative Information" means information, records,
or documents received or generated by a Licensing Authority
pursuant to an investigation or other inquiry.
Q. "Jurisprudence Requirement" means the assessment of an
individual's knowledge of the laws and rules governing the Practice
of Cosmetology in a State.
R. "Licensing Authority" means a Member State's regulatory
body responsible for issuing Cosmetology licenses or otherwise
overseeing the Practice of Cosmetology in that State.
S. "Licensee" means an individual who currently holds an
authorization from a Member State to practice as a Cosmetologist.
T. "Member State" means any State that has adopted this
Compact.
U. "Multistate License" means a license to practice as a
Cosmetologist in all Member States issued by the Licensing
Authority of the Licensee's Home State pursuant to this Compact.
V. "Remote State" means any Member State, other than the
Licensee's Home State.
W. "Rule" means any rule or regulation promulgated by the
Commission under this Compact which has the force of law.
X. "Single-State License" means a Cosmetology license
issued by a Member State that authorizes practice of Cosmetology
only within the issuing state and does not include any
authorization outside of the issuing state.
Y. "State" means a state, territory, or possession of the
United States and the District of Columbia.
Z. "State Practice Laws" means a Member State's laws, rules,
and regulations that govern the Practice of Cosmetology, define the
scope of such practice, and create the methods and grounds for
imposing discipline.
ARTICLE 3- MEMBER STATE REQUIREMENTS
A. To be eligible to join this Compact, and to maintain
eligibility as a Member State, a State must:
1. License and regulate Cosmetology;
2. Have a mechanism or entity in place to receive and
investigate complaints about Licensees practicing in that state;
3. Require that Licensees within the State pass a
competency examination prior to being licensed to provide
Cosmetology Services to the public in that State;
4. Require that Licensees satisfy educational or
training requirements prior to being licensed to provide
Cosmetology Services to the public in that State;
5. Implement procedures for considering one or more of
the following categories of information from applicants for
licensure: criminal history; disciplinary history; or Background
Check. Such procedures may include the submission of information by
applicants for the purpose of obtaining an applicant's Background
Check as defined herein;
6. Participate in the Data System, including through
the use of unique identifying numbers;
7. Share information related to disciplinary actions
with the Commission and other Member States, both through the Data
System and otherwise;
8. Notify the Commission and other Member States, in
compliance with the terms of the Compact and Rules of the
Commission, of any Current Significant Investigative Information
in the State's possession regarding a Licensee practicing in that
State;
9. Comply with such Rules as may be enacted by the
Commission to administer the Compact; and
10. Accept Licensees from other Member States as
established herein.
B. Member States may charge a fee for granting a license to
practice Cosmetology.
C. 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
Singe-State License granted to these individuals shall not be
recognized as granting a Multistate License to provide services in
any other Member State.
D. Nothing in this Compact shall affect the requirements
established by a Member State for the issuance of a Single-State
License.
E. A Multistate License issued to a Licensee by a Home State
to a resident of that State shall be recognized by each Member State
as authorizing a Licensee to practice Cosmetology in each Member
State.
F. At no point shall the Commission have the power to define
the educational or professional requirements for a license to
practice Cosmetology. The Member States shall retain sole
jurisdiction over the provision of these requirements.
ARTICLE 4- MULTISTATE LICENSE PROGRAM
A. A Licensee who holds an active and unencumbered license
to practice Cosmetology in their Home State shall be entitled to
apply to their Home State's Licensing Authority for a Multistate
License.
B. Upon the receipt of an application for a Multistate
License for Cosmetology, according to the Rules of the Commission,
a Member State's Licensing Authority shall ascertain whether the
applicant meets the requirements for a Multistate License under
this Compact using any and all information available to the
Licensing Authority, including, but not limited to, information
uploaded to the Data System by the applicant's Home State.
C. If an applicant meets the requirements for a Multistate
License under this Compact and any Rules of the Commission, the
Licensing Authority in receipt of the application shall, within a
reasonable time, grant a Multistate License to that applicant, and
inform all Member States of the grant of said Multistate License.
D. A Multistate License to practice Cosmetology issued by a
Member State's Licensing Authority shall be recognized by each
Member State as authorizing the practice thereof as though that
Licensee held a Single-State License to do so in each Member State,
subject to the restrictions herein.
E. A Multistate License granted pursuant to this Compact may
be effective for a definite period of time, concurrent with renewal
of the Home State License.
F. To qualify for a Multistate License under this Compact,
and to maintain eligibility for such a license, an applicant must:
1. Hold an active, unencumbered license in the
applicant's Home State;
2. Be assigned and maintain a unique identifying
number, according to the Rules of the Commission;
3. Agree to abide by the rules and requirements of the
Licensing Authority, and the State Practice Laws, of any Member
State in which the applicant provides services;
4. Pay all required fees related to the application
and certification process, and any other fees which the Commission
may by Rule require; and
5. Comply with any and all other requirements
regarding Multistate Licenses which the Commission may by Rule
provide.
G. A Licensee providing services in a Member State must
comply with the State Practice Laws of the State in which the
services are provided, and all other applicable laws of that State.
H. The Practice of Cosmetology under a Multistate License
granted pursuant to this Compact will subject the Licensee to the
jurisdiction of the Licensing Authority, the courts, and the laws
of the Member State in which the Cosmetology Services are provided.
ARTICLE 5- OBTAINING A NEW HOME STATE LICENSE UNDER THE MULTISTATE
LICENSE
A. Under the Multistate Licensure Program in Article 4, a
Licensee may hold a Home State License in only one Member State at
any given time.
B. If a Licensee changes their Primary State of Residence by
moving between two Member States:
1. The Licensee shall file an application for
obtaining a new Home State License under the Multistate Licensure
Program pursuant to Article 4, pay all applicable fees, and notify
the current and new Home States in accordance with the Rules of the
Commission.
2. Upon receipt of an application for obtaining a new
Home State License under the Multistate Licensure Program, the new
Home State shall verify that the Licensee meets the criteria
outlined in Article 4 via the Data System, without the need for
primary source verification.
3. If required for initial licensure in that State, a
Member State may require an additional Background Check as
specified in the laws of that State, or the compliance with any
Jurisprudence Requirements of the new Home State.
4. A Licensee may hold a Multistate License, as issued
by their Home State, in only one Member State at a time.
5. If a Licensee holding a Multistate License changes
their primary state of residence by moving between two Member
States, the Licensee shall apply for licensure in the new Home
State, and the Multistate License issued by the prior Home State
will be deactivated in accordance with the applicable Rules adopted
by the Commission.
6. Notwithstanding any other provision of this
Compact, if a Licensee cannot meet the criteria set out in Article
4, then the new Home State shall use the applicable requirements for
a Single-State License in that State.
7. A Licensee shall pay all applicable fees to the new
Home State in order to be issued a new Home State license.
C. If a Licensee changes their Primary State of Residence by
moving from a Member State to a non-Member State, or from a
non-Member State to a Member State, then the State criteria shall
apply for the issuance of a Single-State License in the new Home
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, and only one Multistate License.
E. Nothing in this Compact shall interfere with the
requirements established by a Member State for the issuance of a
Single-State License.
ARTICLE 6- AUTHORITY OF THE COMPACT COMMISSION AND MEMBER STATE
LICENSING AUTHORITIES
A. Nothing in this Compact, nor any Rule or regulation of
the Commission, shall be construed to limit, restrict, or in any way
reduce the ability of a Member State to enact and enforce laws,
regulations, or other rules related to the Practice of Cosmetology
in that State, where those laws, regulations, or other rules are not
inconsistent with the provisions of this Compact.
B. Insofar as practical, a Member State's Licensing
Authority shall cooperate with the Commission and with each entity
exercising independent regulatory authority over the Practice of
Cosmetology according to the provisions of this Compact.
C. Licensees operating in a Member State under a Multistate
License shall be subject to both the Rules and requirements of the
Commission and those of the Member State in which Cosmetology
Services are being provided.
D. An Adverse Action by a Member State's Licensing Authority
against a Licensee shall in no way limit another Member State's
authority to grant a Single-State License to that Licensee, or to
regulate such Single-State Licenses.
E. Discipline shall be the sole responsibility of the State
in which Cosmetology Services are provided. Accordingly, each
Member State's Licensing Authority shall be responsible for
receiving complaints about individuals practicing Cosmetology in
that State, and for communicating all relevant Investigative
Information about any such Adverse Action to the other Member
States through the Data System in addition to any other methods the
Commission may by Rule require.
ARTICLE 7- ADVERSE ACTIONS
A. A Licensee's Home State shall have exclusive power to
impose an Adverse Action against Licensee's Multistate License
issued by the Home State.
B. In addition to the powers conferred by state law, each
Member State's Licensing Authority shall have the power to:
1. Take Adverse Action against a Licensee's
Authorization to Practice Cosmetology through the Multistate
License in the Member State, provided that:
a. Only the Licensee's Home State shall have the
power to take Adverse Action against the license issued by the Home
State; and
b. For the purposes of taking Adverse Action, the
Home State's Licensing Authority shall give the same priority and
effect to reported conduct received from a Remote State as it would
if such conduct had occurred within the Home State. In so doing, the
Home State shall apply its own state laws to determine the
appropriate action.
2. Issue cease and desist orders or impose an
Encumbrance on a Licensee's Authorization to Practice within that
Member State.
3. Complete any pending investigations of a Licensee
who changes their Primary State of Residence during the course of
such an investigation. The Licensing Authority shall also be
empowered to report the results of such an investigation to the
Commission through the Data System as described herein.
4. 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 Authority in a Member 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 before it.
The issuing Licensing 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 are located.
5. If otherwise permitted by state law, recover from
the affected Licensee the costs of investigations and disposition
of cases resulting from any Adverse Action taken against that
Licensee.
6. Take Adverse Action based on the factual findings
of a Remote State, provided that the Licensing Authority follows
its own procedures for taking such Adverse Action.
C. A Licensee's Home State shall complete any pending
investigation(s) of a Cosmetologist who changes their Primary State
of Residence during the course of the investigation(s). The Home
State, shall also have the authority to take appropriate action(s)
and shall promptly report the conclusions of the investigations to
the Data System.
D. If an Adverse Action is taken by the Home State against
Licensee's Multistate License, the Licensee's Authorization to
Practice in all other Member States shall be deactivated until all
Encumbrances have been removed from the Home State license. All
Home State disciplinary orders that impose an Adverse Action
against a Licensee's Multistate License shall include a statement
that the Cosmetologist's Authorization to Practice is deactivated
in all Member States during the pendency of the order.
E. Nothing in this Compact shall override a Member State's
authority to accept a Licensee's participation in an Alternative
Program in lieu of Adverse Action. A Licensee's Multistate License
shall be suspended for the duration of the Licensee's participation
in any Alternative Program.
ARTICLE 8- ACTIVE DUTY MILITARY AND THEIR SPOUSES
Active Duty Military personnel, or their spouses, shall designate a
Home State where the individual has a current license in good
standing. The individual may retain their Home State designation
during any period of service when that individual is on active duty
assignment.
ARTICLE 9- ESTABLISHMENT OF THE COSMETOLOGY LICENSURE COMPACT
COMMISSION
A. The Compact Member States hereby create and establish a
joint government agency whose membership consists of all member
states that have enacted the compact known as the Cosmetology
Compact Commission. The Commission is an instrumentality of the
Compact States acting jointly and not an instrumentality of any one
state.
B. Membership, Voting, and Meetings
1. Each Member State shall have and be limited to one
(1) delegate selected by that Member State's State Licensing
Authority.
2. The delegate shall be an administrator of the
Licensing Authority of the Member State or their designee.
3. The Commission shall by Rule or bylaw establish a
term of office for delegates and may by Rule or bylaw establish term
limits.
4. The Commission may recommend removal or suspension
any delegate from office.
5. A Member State's State Licensing Authority shall
fill any vacancy of its delegate occurring on the Commission within
60 days of the vacancy.
6. Each delegate shall be entitled to one vote on all
matters before the Commission requiring a vote by Commission
delegates.
7. A delegate shall vote in person or by such other
means as provided in the bylaws. The bylaws may provide for
delegates to meet by telecommunication, videoconference, or other
means of communication.
8. The Commission shall meet at least once during each
calendar year. Additional meetings may be held as set forth in the
bylaws. The Commission may meet by telecommunication, video
conference or other similar electronic means.
C. The Commission shall have the following powers:
1. Establish the fiscal year of the Commission;
2. Establish code of conduct and conflict of interest
policies;
3. Establish and amend Rules and bylaws;
4. Maintain its financial records in accordance with
the bylaws;
5. Meet and take such actions as are consistent with
the provisions of this Compact, the Commission's Rules, and the
bylaws;
6. Initiate and conclude legal proceedings or actions
in the name of the Commission, provided that the standing of any
State 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
personnel, including, but not limited to, employees of a Member
State;
9. Conduct an annual financial review
10. 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;
11. Assess and collect fees;
12. Accept any and all appropriate gifts, donations,
grants of money, other sources of revenue, equipment, supplies,
materials, and services, and to receive, utilize, and dispose of
the same; provided that at all times the Commission shall avoid any
appearance of impropriety or conflict of interest;
13. Lease, purchase, retain, own, hold, improve, or
use any property, real, personal, or mixed, or any undivided
interest therein;
14. Sell, convey, mortgage, pledge, lease, exchange,
abandon, or otherwise dispose of any property real, personal, or
mixed;
15. Establish a budget and make expenditures;
16. Borrow money;
17. Appoint committees, including standing
committees, composed of members, State regulators, State
legislators or their representatives, and consumer
representatives, and such other interested persons as may be
designated in this Compact and the bylaws;
18. Provide and receive information from, and
cooperate with, law enforcement agencies;
19. Establish and elect an Executive Committee,
including a chair and a vice chair;
20. Determine whether a State's adopted language is
materially different from the model compact language such that the
State would not qualify for participation in the Compact; and
21. Perform such other functions as may be necessary
or appropriate to achieve the purposes of this Compact.
D. The Executive Committee
1. The Executive Committee shall have the power to act
on behalf of the Commission according to the terms of this Compact.
The powers, duties, and responsibilities of the Executive Committee
shall include:
a. Oversee the day-to-day activities of the
administration of the compact including enforcement and compliance
with the provisions of the compact, its Rules and bylaws, and other
such duties as deemed necessary;
b. Recommend to the Commission changes to the
Rules or bylaws, changes to this Compact legislation, fees charged
to Compact Member States, fees charged to licensees, and other
fees;
c. Ensure Compact administration services are
appropriately provided, including by contract;
d. Prepare and recommend the budget;
e. Maintain financial records on behalf of the
Commission;
f. Monitor Compact compliance of Member States
and provide compliance reports to the Commission;
g. Establish additional committees as necessary;
h. Exercise the powers and duties of the
Commission during the interim between Commission meetings, except
for adopting or amending Rules, adopting or amending bylaws, and
exercising any other powers and duties expressly reserved to the
Commission by Rule or bylaw; and
i. Other duties as provided in the Rules or
bylaws of the Commission.
2. The Executive Committee shall be composed of seven
members:
a. The chair and vice chair of the Commission
shall be voting members of the Executive Committee; and
b. The Commission shall elect seven voting
members from the current membership of the Commission.
c. The Commission may elect ex-officio,
nonvoting members from a recognized national Cosmetology
professional association as approved by the Commission. The
Commission's bylaws shall identify qualifying organizations and
the manner of appointment if the number of organizations seeking to
appoint an ex officio member exceeds the number of members
specified in this section.
3. The Commission may remove any member of the
Executive Committee as provided in the Commission's bylaws.
4. The Executive Committee shall meet at least
annually.
a. Executive Committee meetings shall be open to
the public, except that the Executive Committee may meet in a
closed, non-public meeting as provided in subsection E.2 below.
b. The Executive Committee shall give ten days'
notice of its meetings, posted on its website and as determined to
provide notice to persons with an interest in the business of the
Commission.
c. The Executive Committee may hold a special
meeting in accordance with subsection E.1.b. below.
E. The Commission shall adopt and provide to the Member
States an annual report.
F. Meetings of the Commission
1. All meetings shall be open to the public, except
that the Commission may meet in a closed, non-public meeting as
provided in subsection F.2 below.
a. Public notice for all meetings of the full
Commission of meetings shall begiven in the same manner as required
under the Rulemaking provisions in Section 11, except that the
Commission may hold a special meeting as provided in subsection
F.1.b below.
b. The Commission may hold a special meeting when
it must meet to conduct emergency business by giving [24, 48,or
other] hours' notice to all commissioners, on the Commission's
website, and other means as provided in the Commission's rules. The
Commission's legal counsel shall certify that the Commission's need
to meet qualifies as an emergency.
2. The Commission or the Executive Committee or other
committees of the Commission may convene in a closed, non-public
meeting for the Commission or Executive Committee or other
committees of the Commission to receive legal advice or to discuss:
a. Non-compliance 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;
c. Current or threatened discipline of a Licensee
or by the Commission or by a Member State's Licensing Board;
d. Current, threatened, or reasonably
anticipated litigation;
e. Negotiation of contracts for the purchase,
lease, or sale of goods, services, or real estate;
f. Accusing any person of a crime or formally
censuring any person;
g. Trade secrets or commercial or financial
information that is privileged or confidential;
h. Information of a personal nature where
disclosure would constitute a clearly unwarranted invasion of
personal privacy;
i. Investigative records compiled for law
enforcement purposes;
j. Information related to any investigative
reports prepared by or on behalf of or for use of the Commission or
other committee charged with responsibility of investigation or
determination of compliance issuespursuant to the Compact;
k. Matters specifically exempted from disclosure
by federal or Member State law; or
l. Other matters as promulgated by the Commission
by Rule.
3. If a meeting, or portion of a meeting, is closed,
the presiding officer shall state that the meeting will be closed
and reference each relevant exempting provision, and such reference
shall be recorded in the minutes.
4. The Commission shall keep minutes that fully and
clearly describe all matters discussed in a meeting and shall
provide a full and accurate summary of actions taken, and the
reasons therefore, including a description of the views expressed.
All documents considered in connection with an action shall be
identified in such minutes. All minutes and documents of a closed
meeting shall remain under seal, subject to release only by a
majority vote of the Commission or order of a court of competent
jurisdiction.
G. Financing of the Commission
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 as provided in C(12).
3. The Commission may levy on and collect an annual
assessment from each Member State and impose fees on licensees of
Member States to whom it grants a Multistate License 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 year for which revenue is not
provided by other sources. The aggregate annual assessment amount
for Member States shall be allocated based upon a formula that the
Commission shall promulgate by Rule.
4. The Commission shall not incur obligations of any
kind prior to securing the funds adequate to meet the same; nor
shall the Commission pledge the credit of any of the Member States,
except by and with the authority of the Member State.
5. The Commission shall keep accurate accounts of all
receipts and disbursements. The receipts and disbursements of the
Commission shall be subject to the financial review and accounting
procedures established under its bylaws. However, all receipts and
disbursements of funds handled by the Commission shall be subject
to an annual financial review bya certified or licensed public
accountant, and the report of the financial review shall be
included in and become part of the annual report of the Commission.
H. Qualified Immunity, Defense, and Indemnification
1. The members, officers, executive director,
employees and representatives of the Commission shall be immune
from suit and liability, both personally and in their official
capacity, for any claim for damage to or loss of property or
personal injury or other civil liability caused by or arising out of
any actual or alleged act, error, or omission that occurred, or that
the person against whom the claim is made had a 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. The
procurement of insurance of any type by the Commission shall not in
any way compromise or limit the immunity granted hereunder.
2. The Commission shall defend any member, officer,
executive director, employee, and representative of the Commission
in any civil action seeking to impose liabilityarising 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 herein shall be construed to prohibit that
person from retaining their own counsel at their own expense; and
provided further, that the actual or alleged act, error, or
omission did not result from that person's intentional or willful
or wanton misconduct.
3. The Commission shall indemnify and hold harmless
any member, officer, executive director, employee, and
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.
4. Nothing herein shall be construed as a limitation
on the liability of any licensee for professional malpractice or
misconduct, which shall be governed solely by any other applicable
state laws.
5. Nothing in this Compact shall be interpreted to
waive or otherwise abrogate a Member State's state action immunity
or state action affirmative defense with respect to antitrust
claims under the Sherman Act, Clayton Act, or any other state or
federal antitrust or anticompetitive law or regulation.
6. Nothing in this Compact shall be construed to be a
waiver of sovereign immunity by the Member States or by the
Commission.
ARTICLE 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 the
presence of Current Significant Investigative Information on all
licensed individuals in Member States.
B. Notwithstanding any other provision of State law to the
contrary, 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 [and information related thereto];
4. Non-confidential information related to
Alternative Program participation, the beginning and ending dates
of such participation, and other information related to such
participation not made confidential under Member State law;
5. Any denial of application for licensure, and the
reason(s) for such denial;
6. The presence of Current 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 information contained in the data system shall be
considered authentic and not hearsay in any civil action involving
the Commission when accompanied by a certification by the
Commission's data system manager concerning the authenticity of the
data.
D. Current Significant Investigative Information and
Investigative Information pertaining to a Licensee in any Member
State will only be available to other Member States.
E. It is the responsibility of the Member States to report
any Adverse Action against a Licensee. Adverse Action information
pertaining to a Licensee in any Member State will be available to
any other Member State.
F. 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.
G. Any information submitted to the Data System that is
subsequently expunged pursuant to federal law or the laws of the
Member State contributing the information shall be removed from the
Data System.
ARTICLE 11- RULEMAKING
A. The Commission shall promulgate reasonable Rules in
order to effectively and efficiently implement and administer the
purposes and provisions of the Compact. In addition to any other
applicable standard of review, in the event a court of competent
jurisdiction holds that the Commission exercised its Rulemaking
authority in a manner that is beyond the scope of the purposes of
the Compact, or the powers granted hereunder, then such an action by
the Commission shall be invalid and have no force or effect.
B. The Rules of the Commission shall have the force of law in
each Member State, provided however that where the Rules of the
Commission conflict with the State Practice Laws of a Member State
as held by a court of competent jurisdiction, the Rules of the
Commission shall be ineffective in that State to the extent of the
conflict.
C. The Commission shall exercise its Rulemaking powers
pursuant to the criteria set forth in this Section and the Rules
adopted thereunder. Rules and amendments shall become binding as of
the date specified in each Rule or amendment.
D. If a majority of the legislatures of the Member States
rejects a Rule or portion of a Rule, by enactment of a statute or
resolution in the same manner used to adopt the Compact within four
(4) years of the date of adoption of the Rule, then such Rule shall
have no further force and effect in any Member State.
E. Rules or amendments to the 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 give oral testimony
and submit written data, facts, opinions, and arguments.
G. Prior to adoption of a proposed Rule by the Commission,
and at least thirty (30) days in advance of the meeting at which the
Commission will hold a public hearing on the proposed Rule, the
Commission shall provide a Notice of Proposed Rulemaking:
1. On the website of the Commission or other publicly
accessible platform;
2. To persons who have requested notice of the
Commission's notices of proposed rulemaking, and
3. In such other way(s) 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 testimony 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
therefor;
4. A request for comments on the proposed Rule from any
interested person; and
5. The manner in which interested persons may submit
written comments.
I. 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.
J. 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 (25) persons;
2. A State or federal governmental subdivision or
agency; or
3. An association or organization having at least
twenty-five (25) members.
K. 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.
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 (5) 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 commend orally or in writing.
3. All hearings will be recorded. A copy of the
recording will be made available on request.
4. Nothing in this section shall be construed as
requiring a separate hearing on each Rule. Rules may be grouped for
the convenience of the Commission at hearings required by this
section.
L. Following the scheduled hearing date, or by the close of
business on the scheduled hearing date if the hearing was not held,
the Commission shall consider all written and oral comments
received.
M. 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.
N. 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.
O. 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
Article shall be retroactively applied to the Rule as soon as
reasonably possible, in no event later than ninety (90) 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; or
4. Protect public health and safety.
P. The Commission or authorized committee of the Commission
may direct revisions to a previously adopted Rule or amendment fir
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 (30) days after posting. The revision may be challenged only
on grounds that the revision results in a material change to a Rule.
A challenge shall be made in writing and delivered to the chair of
the Commission prior to the end of the notice period. If not
challenge is made, the revision will take effect without further
action. If the revision is challenged, the revision may not take
effect with the approval of the Commission.
ARTICLE 12- OVERSIGHT, DISPUTE RESOLUTION, AND ENFORCEMENT
A. Oversight
1. The executive, legislative, and judicial branches
of State government in each Member State shall enforce this Compact
and take all actions necessary and appropriate to effectuate the
Compact's purposes and intent. The provisions of this Compact and
the Rules promulgated hereunder 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
in a Member State pertaining to the subject matter of this Compact
which may affect the powers, responsibilities, or actions of the
Commission.
3. The Commission shall be entitled to receive service
of process in any such proceeding, 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 Termination
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:
a. Provide written notice to the defaulting State
and other Member States of the nature of the default, the proposed
means or curing the default and any other action to be taken by the
Commission; and
b. Provide remedial training and specific
technical assistance regarding the default.
2. If a State in default fails to cure the default, the
defaulting State may be terminated from this 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 offending State of obligations or liabilities incurred
during the period of default.
3. Termination of membership 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, and each of the
Member States.
4. A State that has been terminated is responsible for
all assessments, obligations, and liabilities incurred through the
effective date of termination, including obligations that extend
beyond the effective date of termination.
5. 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.
6. The defaulting State may appeal the action of the
Commission by petitioning the U.S. District Court for the District
of Columbia or the federal district where the Commission has its
principal offices. The prevailing member shall be awarded all costs
of such litigation, including attorney's fees.
C. Dispute Resolution
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 non-member States.
2. The Commission shall promulgate a Rule providing
for both mediation and binding dispute resolution for disputes as
appropriate.
D. Enforcement
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 member shall be awarded costs of such litigation,
including attorney's fees.
3. The remedies herein shall not be the exclusive
remedies of the Commission. The Commission may pursue any other
remedies available under federal or State law.
ARTICLE 13- DATE OF IMPLEMENTATION OF THE COSMETOLOGY LICENSURE
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 in 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 or Rules. Thereafter, the Commission
shall meet and exercise Rulemaking powers necessary to the
implementation and administration of this 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. Any Member State may withdraw from this Compact by
enacting a statute repealing the same.
1. A Member State's withdrawal shall not take effect
until six (6) months after the enactment of the repealing statute.
2. Withdrawal shall not affect the continuing
requirement of the withdrawing State's Licensing Authority to
comply with the investigative and Adverse Action reporting
requirements of this Compact prior to the effective date of
withdrawal.
D. Nothing contained in this Compact shall be construed to
invalidate or prevent any Cosmetology licensure agreement or other
cooperative agreement between a Member State and a non-member State
that does not conflict with the provisions of this Compact.
E. This Compact may be amended by the Member States. No
amendment to this Compact shall become effective and binding upon
any Member State until it is enacted into the laws of all Member
States.
ARTICLE 14- CONSTRUCTION AND SEVERABILITY
This Compact shall be liberally construed so as to effectuate the
purposes thereof. The provisions of this Compact shall be severable
and if any phrase, clause, sentence, or provision of this Compact is
declared to be contrary to the constitution of any Member State or
of the United States or the applicability thereof to any
government, agency, person, or circumstance is held invalid, the
validity of the remainder of this Compact and the applicability
thereof to any government, agency, person, or circumstance shall
not be affected thereby. If this Compact shall be held contrary to
the constitution of any Member State, the Compact shall remain in
full force and effect as to the remaining Member States and in full
force and effect as to the Member State affected as to all severable
matters.
ARTICLE 15- BINDING EFFECT OF COMPACT AND OTHER LAWS
A. A Licensee providing Cosmetology Services in a Remote
State under a Multistate License shall function within the laws and
regulations of the Remote State.
B. Nothing herein prevents the enforcement of any other law
of a Member State that is not inconsistent with this Compact.
C. Any laws in a Member State in conflict with this Compact
are superseded to the extent of the conflict.
D. Any lawful actions by the Commission, including all Rules
and bylaws promulgated by the Commission, are binding upon the
Member States.
E. All 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.