2023 -- H 5658 | |
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LC002016 | |
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STATE OF RHODE ISLAND | |
IN GENERAL ASSEMBLY | |
JANUARY SESSION, A.D. 2023 | |
____________ | |
A N A C T | |
RELATING TO BUSINESSES AND PROFESSIONS -- COUNSELING COMPACT | |
| |
Introduced By: Representatives Fogarty, Tanzi, Shallcross Smith, Cortvriend, Cotter, | |
Date Introduced: February 17, 2023 | |
Referred To: House Corporations | |
It is enacted by the General Assembly as follows: | |
1 | SECTION 1. Legislative findings, purpose and intent. |
2 | (1) The purpose and intent of this chapter is to facilitate interstate practice of licensed |
3 | professional counselors with the goal of improving public access to professional counseling |
4 | services. The practice of professional counseling occurs in the state where the client is located at |
5 | the time of the counseling services. The compact preserves the regulatory authority of states to |
6 | protect public health and safety through the current system of state licensure. |
7 | (2) This compact is designed to achieve the following objectives: |
8 | (i) Increase public access to professional counseling services by providing for the mutual |
9 | recognition of other member state licenses; |
10 | (ii) Enhance the states' ability to protect the public's health and safety; |
11 | (iii) Encourage the cooperation of member states in regulating multistate practice for |
12 | licensed professional counselors; |
13 | (iv) Support spouses of relocating active duty military personnel; |
14 | (v) Enhance the exchange of licensure, investigative, and disciplinary information among |
15 | member states; |
16 | (vi) Allow for the use of telehealth technology to facilitate increased access to professional |
17 | counseling services; |
18 | (vii) Support the uniformity of professional counseling licensure requirements throughout |
19 | the states to promote public safety and public health benefits; |
| |
1 | (viii) Invest all member states with the authority to hold a licensed professional counselor |
2 | accountable for meeting all state practice laws in the state in which the client is located at the time |
3 | care is rendered through the mutual recognition of member state licenses; |
4 | (ix) Eliminate the necessity for licenses in multiple states; and |
5 | (x) Provide opportunities for interstate practice by licensed professional counselors who |
6 | meet uniform licensure requirements. |
7 | SECTION 2. Title 5 of the General Laws entitled "BUSINESSES AND PROFESSIONS" |
8 | is hereby amended by adding thereto the following chapter: |
9 | CHAPTER 39.2 |
10 | COUNSELING COMPACT |
11 | 5-39.2-1. Short title. |
12 | This chapter shall be known and may be cited as the "Counseling Compact". |
13 | 5-39.2-2. Definitions. |
14 | For purposes of this compact, the following terms shall have the following meanings: |
15 | (1) "Active duty military" means full-time duty status in the active uniformed service of |
16 | the United States, including members of the National Guard and Reserve on active duty orders |
17 | pursuant to 10 U.S. C. chapters 12301(d) and 12302. |
18 | (2) "Adverse action" means any administrative, civil, equitable or criminal action permitted |
19 | by Rhode Island law which is imposed by a licensing board or other authority against a licensed |
20 | professional counselor, including actions against an individual's license or privilege to practice such |
21 | as revocation, suspension, probation, monitoring of the licensee, limitation on the licensee's |
22 | practice, or any other encumbrance on licensure affecting a licensed professional counselor's |
23 | authorization to practice, including issuance of a cease and desist action. |
24 | (3) "Alternative program" means a non-disciplinary monitoring or practice remediation |
25 | process approved by a professional counseling licensing board to address impaired practitioners. |
26 | (4) "Continuing competence or continuing education" means a requirement, as a condition |
27 | of license renewal, to provide evidence of participation in, and/or completion of, educational and |
28 | professional activities relevant to practice or area of work. |
29 | (5) "Counseling compact commission" or "commission" means the national administrative |
30 | body whose membership consists of all states that have enacted the compact. |
31 | (6) "Current significant investigative information" means: |
32 | (i) Investigative information that a licensing board, after a preliminary inquiry that includes |
33 | notification and an opportunity for the licensed professional counselor to respond, if required by |
34 | Rhode Island law, has reason to believe is not groundless and, if proved true, would indicate more |
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1 | than a minor infraction; or |
2 | (ii) Investigative information that indicates that the licensed professional counselor |
3 | represents an immediate threat to public health and safety regardless of whether the licensed |
4 | professional counselor has been notified and had an opportunity to respond. |
5 | (7) "Data system" means a repository of information about licensees, including, but not |
6 | limited to, continuing education, examination, licensure, investigative, privilege to practice and |
7 | adverse action information. |
8 | (8) "Encumbered license" means a license in which an adverse action restricts the practice |
9 | of licensed professional counseling by the licensee and said adverse action has been reported to the |
10 | National Practitioners Data Bank (NPDB). |
11 | (9) ''Encumbrance" means a revocation or suspension of, or any limitation on, the full and |
12 | unrestricted practice of licensed professional counseling by a licensing board. |
13 | (10) "Executive committee" means a group of directors elected or appointed to act on |
14 | behalf of, and within the powers granted to them by, the commission. |
15 | (11) "Home state" means the member state that is the licensee's primary state of residence. |
16 | (12) "Impaired practitioner" means an individual who has a condition(s) that may impair |
17 | their ability to practice as a licensed professional counselor without some type of intervention and |
18 | may include, but are not limited to, alcohol and drug dependence, mental health impairment, and |
19 | neurological or physical impairments. |
20 | (13) "Investigative information'' means information, records, and documents received or |
21 | generated by a professional counseling licensing board pursuant to an investigation. |
22 | (14) "Jurisprudence requirement" means the assessment of an individual's knowledge of |
23 | the laws and rules governing the practice of professional counseling in a state. |
24 | (15) "Licensed professional counselor" means a counselor licensed by a member state, |
25 | regardless of the title used by that state, to independently assess, diagnose, and treat behavioral |
26 | health conditions. |
27 | (16) "Licensee" means an individual who currently holds an authorization from the state to |
28 | practice as a licensed professional counselor. |
29 | (17) "Licensing board" means the agency of a state, or equivalent, that is responsible for |
30 | the licensing and regulation of licensed professional counselors. |
31 | (18) "Member state" means a state that has enacted the compact. |
32 | (19) "Privilege to practice" means a legal authorization, which is equivalent to a license, |
33 | permitting the practice of professional counseling in a remote state. |
34 | (20) "Professional counseling" means the assessment, diagnosis, and treatment of |
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1 | behavioral health conditions by a licensed professional counselor. |
2 | (21) "Remote state" means a member state other than the home state, where a licensee is |
3 | exercising or seeking to exercise the privilege to practice. |
4 | (22) "Rule" means a regulation promulgated by the commission that has the force of law. |
5 | (23) "Single state license" means a licensed professional counselor license issued by a |
6 | member state that authorizes practice only within the issuing state and does not include a privilege |
7 | to practice in any other member state. |
8 | (24) "State" means any state, commonwealth, district, or territory of the United States of |
9 | America that regulates the practice of professional counseling. |
10 | (25) "Telehealth" means the application of telecommunication technology to deliver |
11 | professional counseling services remotely to assess, diagnose, and treat behavioral health |
12 | conditions. |
13 | (26) "Unencumbered license" means a license that authorizes a licensed professional |
14 | counselor to engage in the full and unrestricted practice of professional counseling. |
15 | 5-39.2-3. State participation in the compact. |
16 | (a) To participate in the compact, a state must currently: |
17 | (1) License and regulate licensed professional counselors; |
18 | (2) Require licensees to pass a nationally recognized exam approved by the commission; |
19 | (3) Require licensees to have a sixty (60) semester-hour, or ninety (90) quarter-hour, |
20 | master's degree in counseling or, sixty (60) semester-hours, or ninety (90) quarter-hours, of |
21 | graduate course work including the following topic areas: |
22 | (i) Professional counseling orientation and ethical practice; |
23 | (ii) Social and cultural diversity; |
24 | (iii) Human growth and development; |
25 | (iv) Career development; |
26 | (v) Counseling and helping relationships; |
27 | (vi) Group counseling and group work; |
28 | (vii) Diagnosis and treatment; assessment and testing; |
29 | (viii) Research and program evaluation; and |
30 | (ix) Other areas as determined by the commission. |
31 | (4) Require licensees to complete a supervised postgraduate professional experience as |
32 | defined by the commission; and |
33 | (5) Have a mechanism in place for receiving and investigating complaints about licensees. |
34 | (b) A member state shall: |
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1 | (1) Participate fully in the commission's data system, including using the commission's |
2 | unique identifier as defined in rules; |
3 | (2) Notify the commission, in compliance with the terms of the compact and rules, of any |
4 | adverse action or the availability of investigative information regarding a licensee; |
5 | (3) Implement or utilize procedures for considering the criminal history records of |
6 | applicants for an initial privilege to practice. These procedures shall include the submission of |
7 | fingerprints or other biometric-based information by applicants for the purpose of obtaining an |
8 | applicant's criminal history record information from the Federal Bureau of Investigation and the |
9 | agency responsible for retaining that state's criminal records; |
10 | (i) A member state shall fully implement a criminal background check requirement, within |
11 | a time frame established by rule, by receiving the results of the Federal Bureau of Investigation |
12 | record search and shall use the results in making licensure decisions. |
13 | (ii) Communication between a member state, the commission and among member states |
14 | regarding the verification of eligibility for licensure through the compact shall not include any |
15 | information received from the Federal Bureau of Investigation relating to a federal criminal records |
16 | check performed by a member state under federal Pub. L. 92-544. |
17 | (4) Comply with the rules of the commission; |
18 | (5) Require an applicant to obtain or retain a license in the home state and meet the home |
19 | state's qualifications for licensure or renewal of licensure, as well as all other applicable state laws; |
20 | (6) Grant the privilege to practice to a licensee holding a valid unencumbered license in |
21 | another member state in accordance with the terms of the compact and rules; and |
22 | (7) Provide for the attendance of the state's commissioner to the counseling compact |
23 | commission meetings. |
24 | (c) Member states may charge a fee for granting the privilege to practice. |
25 | (d) Individuals not residing in a member state shall continue to be able to apply for a |
26 | member state's single state license as provided under the laws of each member state. However, the |
27 | single state license granted to these individuals shall not be recognized as granting a privilege to |
28 | practice professional counseling in any other member state. |
29 | (e) Nothing in this compact shall affect the requirements established by a member state for |
30 | the issuance of a single state license. |
31 | (f) A license issued to a licensed professional counselor by a home state to a resident in |
32 | that state shall be recognized by each member state as authorizing a licensed professional counselor |
33 | to practice professional counseling, under a privilege to practice, in each member state. |
34 | 5-39.2-4. Privilege to practice. |
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1 | (a) To exercise the privilege to practice under the terms and provisions of the compact, the |
2 | licensee shall: |
3 | (1) Hold a license in the home state; |
4 | (2) Have a valid United States social security number or national practitioner identifier; |
5 | (3) Be eligible for a privilege to practice in any member state in accordance with |
6 | subsections (d), (g) and (h) of this section; |
7 | (4) Have not had any encumbrance or restriction against any license or privilege to practice |
8 | within the previous two (2) years; |
9 | (5) Notify the commission that the licensee is seeking the privilege to practice within a |
10 | remote state(s); |
11 | (6) Pay any applicable fees, including any state fee, for the privilege to practice; |
12 | (7) Meet any continuing competence or continuing education requirements established by |
13 | the home state; |
14 | (8) Meet any jurisprudence requirements established by the remote state(s) in which the |
15 | licensee is seeking a privilege to practice; and |
16 | (9) Report to the commission any adverse action, encumbrance, or restriction on license |
17 | taken by any non-member state within thirty (30) days from the date the action is taken. |
18 | (b) The privilege to practice is valid until the expiration date of the home state license. The |
19 | licensee shall comply with the requirements of subsection (a) of this section to maintain the |
20 | privilege to practice in the remote state. |
21 | (c) A licensee providing professional counseling in a remote state under the privilege to |
22 | practice shall adhere to the laws and regulations of the remote state. |
23 | (d) A licensee providing professional counseling services in a remote state is subject to that |
24 | state's regulatory authority. A remote state may, in accordance with due process and that state's |
25 | laws, remove a licensee's privilege to practice in the remote state for a specific period of time, |
26 | impose fines, and/or take any other necessary actions to protect the health and safety of its citizens. |
27 | The licensee may be ineligible for a privilege to practice in any member state until the specific time |
28 | for removal has passed and all fines are paid. |
29 | (e) If a home state license is encumbered, the licensee shall lose the privilege to practice in |
30 | any remote state until the following occur: |
31 | (1) The home state license is no longer encumbered; and |
32 | (2) Have not had any encumbrance or restriction against any license or privilege to practice |
33 | within the previous two (2) years. |
34 | (f) Once an encumbered license in the home state is restored to good standing, the licensee |
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1 | must meet the requirements of subsection (a) of this section to obtain a privilege to practice in any |
2 | remote state. |
3 | (g) If a licensee's privilege to practice in any remote state is removed, the individual may |
4 | lose the privilege to practice in all other remote states until the following occur: |
5 | (1) The specific period of time for which the privilege to practice was removed has ended; |
6 | (2) All fines have been paid; and |
7 | (3) Have not had any encumbrance or restriction against any license or privilege to practice |
8 | within the previous two (2) years. |
9 | (h) Once the requirements of subsection (g) of this section have been met, the licensee shall |
10 | meet the requirements in subsection (a) of this section to obtain a privilege to practice in a remote |
11 | state. |
12 | 5-39.2-5. Obtaining a new home state license based on a privilege to practice. |
13 | (a) A licensed professional counselor may hold a home state license, which allows for a |
14 | privilege to practice in other member states, in only one member state at a time. |
15 | (b) If a licensed professional counselor changes primary state of residence by moving |
16 | between two (2) member states: |
17 | (1) The licensed professional counselor shall file an application for obtaining a new home |
18 | state license based on a privilege to practice, pay all applicable fees, and notify the current and new |
19 | home state in accordance with applicable rules adopted by the commission. |
20 | (2) Upon receipt of an application for obtaining a new home state license by virtue of a |
21 | privilege to practice, the new home state shall verify that the licensed professional counselor meets |
22 | the pertinent criteria outlined in § 5-39.2-4, via the data system, without need for primary source |
23 | verification except for: |
24 | (i) A Federal Bureau of Investigation fingerprint based criminal background check if not |
25 | previously performed or updated pursuant to applicable rules adopted by the commission in |
26 | accordance with federal Pub. L. 92-544; |
27 | (ii) Other criminal background check as required by the new home state; and |
28 | (iii) Completion of any requisite jurisprudence requirements of the new home state. |
29 | (3) The former home state shall convert the former home state license into a privilege to |
30 | practice once the new home state has activated the new home state license in accordance with |
31 | applicable rules adopted by the commission. |
32 | (4) Notwithstanding any other provision of this compact, if the licensed professional |
33 | counselor cannot meet the criteria in § 5-39.2-4, the new home state may apply its requirements for |
34 | issuing a new single state license. |
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1 | (5) The licensed professional counselor shall pay all applicable fees to the new home state |
2 | in order to be issued a new home state license. |
3 | (c) If a licensed professional counselor changes primary state of residence by moving from |
4 | a member state to a non-member state, or from a non-member state to a member state, the state |
5 | criteria shall apply for issuance of a single state license in the new state. |
6 | (d) Nothing in this compact shall interfere with a licensee's ability to hold a single state |
7 | license in multiple states; however for the purposes of this compact, a licensee shall have only one |
8 | home state license. |
9 | (e) Nothing in this compact shall affect the requirements established by a member state for |
10 | the issuance of a single state license. |
11 | 5-39.2-6. Active duty military personnel or their spouses. |
12 | Active duty military personnel, or their spouse, shall designate a home state where the |
13 | individual has a current license in good standing. The individual may retain the home state |
14 | designation during the period the service member is on active duty. Subsequent to designating a |
15 | home state, the individual shall only change their home state through application for licensure in |
16 | the new state, or pursuant to the provisions in § 5-39.2-5. |
17 | 5-39.2-7. Compact privilege to practice telehealth. |
18 | (a) Member states shall recognize the right of a licensed professional counselor, licensed |
19 | by a home state in accordance with § 5-39.2-3 and under rules promulgated by the commission, to |
20 | practice professional counseling in any member state via telehealth under a privilege to practice as |
21 | provided in the compact and rules promulgated by the commission. |
22 | (b) A licensee providing professional counseling services in a remote state under the |
23 | privilege to practice shall adhere to the laws and regulations of the remote state. |
24 | 5-39.2-8. Adverse actions. |
25 | (a) In addition to the other powers conferred by state law, a remote state shall have the |
26 | authority, in accordance with existing state due process law, to: |
27 | (1) Take adverse action against a licensed professional counselor's privilege to practice |
28 | within that member state, and |
29 | (2) Issue subpoenas for both hearings and investigations that require the attendance and |
30 | testimony of witnesses as well as the production of evidence. Subpoenas issued by a licensing board |
31 | in a member state for the attendance and testimony of witnesses or the production of evidence from |
32 | another member state shall be enforced in the latter state by any court of competent jurisdiction, |
33 | according to the practice and procedure of that court applicable to subpoenas issued in proceedings |
34 | pending before it. The issuing authority shall pay any witness fees, travel expenses, mileage, and |
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1 | other fees required by the service statutes of the state in which the witnesses or evidence are located. |
2 | (3) Only the home state shall have the power to take adverse action against a licensed |
3 | professional counselor's license issued by the home state. |
4 | (b) For purposes of taking adverse action, the home state shall give the same priority and |
5 | effect to reported conduct received from a member state as it would if the conduct had occurred |
6 | within the home state. In so doing, the home state shall apply its own state laws to determine |
7 | appropriate action. |
8 | (c) The home state shall complete any pending investigations of a licensed professional |
9 | counselor who changes primary state of residence during the course of the investigations. The home |
10 | state shall also have the authority to take appropriate action and shall promptly report the |
11 | conclusions of the investigations to the administrator of the data system. The administrator of the |
12 | coordinated licensure information system shall promptly notify the new home state of any adverse |
13 | actions. |
14 | (d) A member state, if otherwise permitted by state law, may recover from the affected |
15 | licensed professional counselor the costs of investigations and dispositions of cases resulting from |
16 | any adverse action taken against that licensed professional counselor. |
17 | (e) A member state may take adverse action based on the factual findings of the remote |
18 | state; provided that the member state follows its own procedures for taking the adverse action. |
19 | (f) Joint investigations: |
20 | (1) In addition to the authority granted to a member state by its respective professional |
21 | counseling practice law or other applicable state law, any member state may participate with other |
22 | member states in joint investigations of licensees. |
23 | (2) Member states shall share any investigative, litigation, or compliance materials in |
24 | furtherance of any joint or individual investigation initiated under the compact. |
25 | (g) If adverse action is taken by the home state against the license of a licensed professional |
26 | counselor, the licensed professional counselor's privilege to practice in all other member states shall |
27 | be deactivated until all encumbrances have been removed from the state license. All home state |
28 | disciplinary orders that impose adverse action against the license of a licensed professional |
29 | counselor shall include a statement that the licensed professional counselor's privilege to practice |
30 | is deactivated in all member states during the pendency of the order. |
31 | (h) If a member state takes adverse action, it shall promptly notify the administrator of the |
32 | data system. The administrator of the data system shall promptly notify the home state of any |
33 | adverse actions by remote states. |
34 | (i) Nothing in this compact shall override a member state's decision that participation in an |
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1 | alternative program may be used in lieu of adverse action. |
2 | 5-39.2-9. Establishment of counseling compact commission. |
3 | (a) The compact member states hereby create and establish a joint public agency known as |
4 | the counseling compact commission: |
5 | (1) The commission is an instrumentality of the compact states. |
6 | (2) Venue is proper and judicial proceedings by or against the commission shall be brought |
7 | solely and exclusively in a court of competent jurisdiction where the principal office of the |
8 | commission is located. The commission may waive venue and jurisdictional defenses to the extent |
9 | it adopts or consents to participate in alternative dispute resolution proceedings. |
10 | (3) Nothing in this compact shall be construed to be a waiver of sovereign immunity. |
11 | (b) Membership, voting, and meetings. |
12 | (1) Each member state shall have and be limited to one delegate selected by that member |
13 | state's licensing board. |
14 | (2) The delegate shall be either: |
15 | (i) A current member of the licensing board at the time of appointment, who is a licensed |
16 | professional counselor or public member; or |
17 | (ii) An administrator of the licensing board. |
18 | (3) Any delegate may be removed or suspended from office as provided by the law of the |
19 | state from which the delegate is appointed. |
20 | (4) The member state licensing board shall fill any vacancy occurring on the commission |
21 | within sixty (60) days. |
22 | (5) Each delegate shall be entitled to one vote with regard to the promulgation of rules and |
23 | creation of bylaws and shall otherwise have an opportunity to participate in the business and affairs |
24 | of the commission. |
25 | (6) A delegate shall vote in person or by such other means as provided in the bylaws. The |
26 | bylaws may provide for delegates' participation in meetings by telephone or other means of |
27 | communication. |
28 | (7) The commission shall meet at least once during each calendar year. Additional meetings |
29 | shall be held as set forth in the bylaws. |
30 | (8) The commission shall by rule establish a term of office for delegates and may by rule |
31 | establish term limits. |
32 | (c) The commission shall have the following powers and duties: |
33 | (1) Establish the fiscal year of the commission; |
34 | (2) Establish bylaws; |
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1 | (3) Maintain its financial records in accordance with the bylaws; |
2 | (4) Meet and take such actions as are consistent with the provisions of this compact and |
3 | the bylaws; |
4 | (5) Promulgate rules which shall be binding to the extent and in the manner provided for |
5 | in the compact; |
6 | (6) Bring and prosecute legal proceedings or actions in the name of the commission; |
7 | provided that the standing of any state licensing board to sue or be sued under applicable law shall |
8 | not be affected; |
9 | (7) Purchase and maintain insurance and bonds; |
10 | (8) Borrow, accept, or contract for services of personnel, including, but not limited to, |
11 | employees of a member state; |
12 | (9) Hire employees, elect or appoint officers, fix compensation, define duties, grant such |
13 | individuals appropriate authority to carry out the purposes of the compact, and establish the |
14 | commission's personnel policies and programs relating to conflicts of interest, qualifications of |
15 | personnel, and other related personnel matters; |
16 | (10) Accept any and all appropriate donations and grants of money, equipment, supplies, |
17 | materials, and services, and to receive, utilize, and dispose of the same; provided that, at all times |
18 | the commission shall avoid any appearance of impropriety and/or conflict of interest; |
19 | (11) Lease, purchase, accept appropriate gifts or donations of, or otherwise to own, hold, |
20 | improve or use, any property, real, personal or mixed; provided that, at all times the commission |
21 | shall avoid any appearance of impropriety; |
22 | (12) Sell, convey, mortgage, pledge, lease, exchange, abandon, or otherwise dispose of any |
23 | property real, personal, or mixed; |
24 | (13) Establish a budget and make expenditures; |
25 | (14) Borrow money; |
26 | (15) Appoint committees, including standing committees composed of members, state |
27 | regulators, state legislators or their representatives, and consumer representatives, and such other |
28 | interested persons as may be designated in this compact and the bylaws; |
29 | (16) Provide and receive information from, and cooperate with, law enforcement agencies; |
30 | (17) Establish and elect an executive committee; and |
31 | (18) Perform such other functions as may be necessary or appropriate to achieve the |
32 | purposes of this compact consistent with the state regulation of professional counseling licensure |
33 | and practice. |
34 | (d) The executive committee: |
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1 | (1) The executive committee shall have the power to act on behalf of the commission |
2 | according to the terms of this compact. |
3 | (2) The executive committee shall be composed of up to eleven (11) members: |
4 | (i) Seven (7) voting members who are selected by the commission from the current |
5 | membership of the commission; and |
6 | (ii) Up to four (4) exofficio, nonvoting members from four (4) recognized national |
7 | professional counselor organizations. |
8 | (iii) The exofficio members will be selected by their respective organizations. |
9 | (3) The commission may remove any member of the executive committee as provided in |
10 | the bylaws. |
11 | (4) The executive committee shall meet at least annually. |
12 | (5) The executive committee shall have the following duties and responsibilities: |
13 | (i) Recommend to the entire commission changes to the rules or bylaws, changes to this |
14 | compact legislation, fees paid by compact member states such as annual dues, and any commission |
15 | compact fee charged to licensees for the privilege to practice; |
16 | (ii) Ensure compact administration services are appropriately provided, contractual or |
17 | otherwise; |
18 | (iii) Prepare and recommend the budget; |
19 | (iv) Maintain financial records on behalf of the commission; |
20 | (v) Monitor compact compliance of member states and provide compliance reports to the |
21 | commission; |
22 | (vi) Establish additional committees as necessary; and |
23 | (vii) Other duties as provided in rules or bylaws. |
24 | (e) Meetings of the commission. |
25 | (1) All meetings shall be open to the public, and public notice of meetings shall be given |
26 | in the same manner as required under the rulemaking provisions in § 5-39.2-11. |
27 | (2) The commission or the executive committee or other committees of the commission |
28 | may convene in a closed, non-public meeting if the commission or executive committee or other |
29 | committees of the commission intend to discuss: |
30 | (i) Non-compliance of a member state with its obligations under the compact; |
31 | (ii) The employment, compensation, discipline or other matters, practices or procedures |
32 | related to specific employees or other matters related to the commission's internal personnel |
33 | practices and procedures; |
34 | (iii) Current, threatened, or reasonably anticipated litigation; |
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1 | (iv) Negotiation of contracts for the purchase, lease, or sale of goods, services, or real |
2 | estate; |
3 | (v) Make a report to law enforcement and authorizes accusing any person of a suspected |
4 | crime or formally censuring any person; |
5 | (vi) Disclosure of trade secrets or commercial or financial information that is privileged or |
6 | confidential; |
7 | (vii) Disclosure of information of a personal nature where disclosure would constitute a |
8 | clearly unwarranted invasion of personal privacy; |
9 | (viii) Disclosure of investigative records compiled for law enforcement purposes; |
10 | (ix) Disclosure of information related to any investigative reports prepared by or on behalf |
11 | of or for use of the commission or other committee charged with responsibility of investigation or |
12 | determination of compliance issues pursuant to the compact; or |
13 | (x) Matters specifically exempted from disclosure by federal or member state statute. |
14 | (3) If a meeting, or portion of a meeting, is closed pursuant to this provision, the |
15 | commission's legal counsel or designee shall certify that the meeting may be closed and shall |
16 | reference each relevant exempting provision. |
17 | (4) The commission shall keep minutes that fully and clearly describe all matters discussed |
18 | in a meeting and shall provide a full and accurate summary of actions taken, and the reasons |
19 | therefore, including a description of the views expressed. All documents considered in connection |
20 | with an action shall be identified in such minutes. All minutes and documents of a closed meeting |
21 | shall remain under seal, subject to release by a majority vote of the commission or order of a court |
22 | of competent jurisdiction. |
23 | (f) Financing of the commission. |
24 | (1) The commission shall pay, or provide for the payment of, the reasonable expenses of |
25 | its establishment, organization, and ongoing activities. |
26 | (2) The commission may accept any and all appropriate revenue sources, donations, and |
27 | grants of money, equipment, supplies, materials, and services. |
28 | (3) The commission may levy on and collect an annual assessment from each member state |
29 | or impose fees on other parties to cover the cost of the operations and activities of the commission |
30 | and its staff, which must be in a total amount sufficient to cover its annual budget as approved each |
31 | year for which revenue is not provided by other sources. The aggregate annual assessment amount |
32 | shall be allocated based upon a formula to be determined by the commission, which shall |
33 | promulgate a rule binding upon all member states. |
34 | (4) The commission shall not incur obligations of any kind prior to securing the funds |
| LC002016 - Page 13 of 22 |
1 | adequate to meet the same; nor shall the commission pledge the credit of any of the member states, |
2 | except by and with the authority of the member state. |
3 | (5) The commission shall keep accurate accounts of all receipts and disbursements. The |
4 | receipts and disbursements of the commission shall be subject to the audit and accounting |
5 | procedures established under its bylaws. However, all receipts and disbursements of funds handled |
6 | by the commission shall be audited yearly by a certified or licensed public accountant, and the |
7 | report of the audit shall be included in and become part of the annual report of the commission. |
8 | (g) Qualified immunity, defense, and indemnification. |
9 | (1) The members, officers, executive director, employees and representatives of the |
10 | commission shall be immune from suit and liability, either personally or in their official capacity, |
11 | for any claim for damage to or loss of property or personal injury or other civil liability caused by |
12 | or arising out of any actual or alleged act, error or omission that occurred, or that the person against |
13 | whom the claim is made had a reasonable basis for believing occurred within the scope of |
14 | commission employment, duties or responsibilities; provided that, nothing in this subsection shall |
15 | be construed to protect any such person from suit and/or liability for any damage, loss, injury, or |
16 | liability caused by the intentional or willful or wanton misconduct of that person. |
17 | (2) The commission shall defend any member, officer, executive director, employee or |
18 | representative of the commission in any civil action seeking to impose liability arising out of any |
19 | actual or alleged act, error, or omission that occurred within the scope of commission employment, |
20 | duties, or responsibilities, or that the person against whom the claim is made had a reasonable basis |
21 | for believing occurred within the scope of commission employment, duties, or responsibilities; |
22 | provided that, nothing herein shall be construed to prohibit that person from retaining his or her |
23 | own counsel; and provided further, that the actual or alleged act, error, or omission did not result |
24 | from that person's intentional or willful or wanton misconduct. |
25 | (3) The commission shall indemnify and hold harmless any member, officer, executive |
26 | director, employee, or representative of the commission for the amount of any settlement or |
27 | judgment obtained against that person arising out of any actual or alleged act, error, or omission |
28 | that occurred within the scope of commission employment, duties, or responsibilities, or that such |
29 | person had a reasonable basis for believing occurred within the scope of commission employment, |
30 | duties, or responsibilities; provided that, the actual or alleged act error, or omission did not result |
31 | from the intentional or willful or wanton misconduct of that person. |
32 | 5-39.2-10. Data system. |
33 | (a) The commission shall provide for the development, maintenance, operation, and |
34 | utilization of a coordinated database and reporting system containing licensure, adverse action, and |
| LC002016 - Page 14 of 22 |
1 | investigative information on all licensed individuals in member states. |
2 | (b) Notwithstanding any other provision of state law to the contrary, a member state shall |
3 | submit a uniform data set to the data system on all individuals to whom this compact is applicable |
4 | as required by the rules of the commission, including: |
5 | (i) Identifying information; |
6 | (ii) Licensure data; |
7 | (iii) Adverse actions against a license or privilege to practice; |
8 | (iv) Non-confidential information related to alternative program participation; |
9 | (v) Any denial of application for licensure, and the reason(s) for such denial; |
10 | (vi) Current significant investigative information; and |
11 | (vii) Other information that may facilitate the administration of this compact, as determined |
12 | by the rules of the commission. |
13 | (c) Investigative information pertaining to a licensee in any member state will only be |
14 | available to other member states. |
15 | (d) The commission shall promptly notify all member states of any adverse action taken |
16 | against a licensee or an individual applying for a license. Adverse action information pertaining to |
17 | a licensee in any member state will be available to any other member state. |
18 | (e) Member states contributing information to the data system may designate information |
19 | that may not be shared with the public without the express permission of the contributing state. |
20 | (f) Any information submitted to the data system that is subsequently required to be |
21 | expunged by the laws of the member state contributing the information shall be removed from the |
22 | data system. |
23 | 5-39.2-11. Rulemaking. |
24 | (a) The commission shall promulgate reasonable rules in order to effectively and efficiently |
25 | achieve the purpose of the compact. Notwithstanding the foregoing, in the event the commission |
26 | exercises its rulemaking authority in a manner that is beyond the scope of the purposes of the |
27 | compact, or the powers granted hereunder, then such an action by the commission shall be invalid |
28 | and have no force or effect. |
29 | (b) The commission shall exercise its rulemaking powers pursuant to the criteria set forth |
30 | in this section and the rules adopted thereunder. Rules and amendments shall become binding as of |
31 | the date specified in each rule or amendment. |
32 | (c) If a majority of the legislatures of the member states rejects a rule, by enactment of a |
33 | statute or resolution in the same manner used to adopt the compact within four (4) years of the date |
34 | of adoption of the rule, then such rule shall have no further force and effect in any member state. |
| LC002016 - Page 15 of 22 |
1 | (d) Rules or amendments to the rules shall be adopted at a regular or special meeting of the |
2 | commission. |
3 | (e) Prior to promulgation and adoption of a final rule or rules by the commission, and at |
4 | least thirty (30) days in advance of the meeting at which the rule or rules will be considered and |
5 | voted upon, the commission shall file a notice of proposed rulemaking: |
6 | (1) On the website of the commission or other publicly accessible platform; and |
7 | (2) On the website of each member state professional counseling licensing board or other |
8 | publicly accessible platform or the publication in which each state would otherwise publish |
9 | proposed rules. |
10 | (f) The notice of proposed rulemaking shall include: |
11 | (1) The proposed time, date, and location of the meeting in which the rule will be |
12 | considered and voted upon; |
13 | (2) The text of the proposed rule or amendment and the reason for the proposed rule; |
14 | (3) A request for comments on the proposed rule from any interested person; and |
15 | (4) The manner in which interested persons may submit notice to the commission of their |
16 | intention to attend the public hearing and any written comments. |
17 | (g) Prior to adoption of a proposed rule, the commission shall allow persons to submit |
18 | written data, facts, opinions, and arguments, which shall be made available to the public. |
19 | (h) The commission shall grant an opportunity for a public hearing before it adopts a rule |
20 | or amendment if a hearing is requested by: |
21 | (1) At least twenty-five (25) persons; |
22 | (2) A state or federal governmental subdivision or agency; or |
23 | (3) An association having at least twenty-five (25) members. |
24 | (i) lf a hearing is held on the proposed rule or amendment, the commission shall publish |
25 | the place, time, and date of the scheduled public hearing. If the hearing is held via electronic means, |
26 | the commission shall publish the mechanism for access to the electronic hearing. |
27 | (1) All persons wishing to be heard at the hearing shall notify the executive director of the |
28 | commission or other designated member in writing of their desire to appear and testify at the |
29 | hearing not less than five (5) business days before the scheduled date of the hearing. |
30 | (2) Hearings shall be conducted in a manner providing each person who elects to comment |
31 | with a fair and reasonable opportunity to comment orally or in writing. |
32 | (3) All hearings will be recorded. A copy of the recording will be made available on |
33 | request. |
34 | (4) Nothing in this section shall be construed as requiring a separate hearing on each rule. |
| LC002016 - Page 16 of 22 |
1 | Rules may be grouped for the convenience of the commission at hearings required by this section. |
2 | (j) Following the scheduled hearing date, or by the close of business on the scheduled |
3 | hearing date if the hearing was not held, the commission shall consider all written and oral |
4 | comments received. |
5 | (k) If no written notice of intent to attend the public hearing by interested parties is |
6 | received, the commission may proceed with promulgation of the proposed rule without a public |
7 | hearing. |
8 | (l) The commission shall, by majority vote of all members, take final action on the proposed |
9 | rule and shall determine the effective date of the rule, if any, based on the rulemaking record and |
10 | the full text of the rule. |
11 | (m) Upon determination that an emergency exists, the commission may consider and adopt |
12 | an emergency rule without prior notice, opportunity for comment, or hearing; provided that, the |
13 | usual rulemaking procedures provided in the compact and in this section shall be retroactively |
14 | applied to the rule as soon as reasonably possible, in no event later than ninety (90) days after the |
15 | effective date of the rule. For the purposes of this provision, an emergency rule is one that must be |
16 | adopted immediately in order to: |
17 | (i) Meet an imminent threat to public health, safety, or welfare; |
18 | (ii) Prevent a loss of commission or member state funds; |
19 | (iii) Meet a deadline for the promulgation of an administrative rule that is established by |
20 | federal law or rule; or |
21 | (iv) Protect public health and safety. |
22 | (n) The commission or an authorized committee of the commission may direct revisions to |
23 | a previously adopted rule or amendment for purposes of correcting typographical errors, errors in |
24 | format, errors in consistency, or grammatical errors. Public notice of any revisions shall be posted |
25 | on the website of the commission. The revision shall be subject to challenge by any person for a |
26 | period of thirty (30) days after posting. The revision may be challenged only on grounds that the |
27 | revision results in a material change to a rule. A challenge shall be made in writing and delivered |
28 | to the chair of the commission prior to the end of the notice period. If no challenge is made, the |
29 | revision will take effect without further action. If the revision is challenged, the revision may not |
30 | take effect without the approval of the commission. |
31 | 5-39.2-12. Oversight, dispute resolution and enforcement. |
32 | (a) Oversight. |
33 | (1) The executive, legislative, and judicial branches of state government in each member |
34 | state shall enforce this compact and take all actions necessary and appropriate to effectuate the |
| LC002016 - Page 17 of 22 |
1 | compact's purposes and intent. The provisions of this compact and the rules promulgated hereunder |
2 | shall have standing as statutory law. |
3 | (2) All courts shall take judicial notice of the compact and the rules in any judicial or |
4 | administrative proceeding in a member state pertaining to the subject matter of this compact which |
5 | may affect the powers, responsibilities, or actions of the commission. |
6 | (3) The commission shall be entitled to receive service of process in any such proceeding |
7 | and shall have standing to intervene in such a proceeding for all purposes. Failure to provide service |
8 | of process to the commission shall render a judgment or order void as to the commission, this |
9 | compact, or promulgated rules. |
10 | (b) Default, technical assistance, and termination. |
11 | (1) If the commission determines that a member state has defaulted in the performance of |
12 | its obligations or responsibilities under this compact or the promulgated rules, the commission |
13 | shall: |
14 | (i) Provide written notice to the defaulting state and other member states of the nature of |
15 | the default, the proposed means of curing the default and/or any other action to be taken by the |
16 | commission; and |
17 | (ii) Provide remedial training and specific technical assistance regarding the default. |
18 | (c) If a state in default fails to cure the default, the defaulting state may be terminated from |
19 | the compact upon an affirmative vote of a majority of the member states, and all rights, privileges |
20 | and benefits conferred by this compact may be terminated on the effective date of termination. A |
21 | cure of the default does not relieve the offending state of obligations or liabilities incurred during |
22 | the period of default. |
23 | (d) Termination of membership in the compact shall be imposed only after all other means |
24 | of securing compliance have been exhausted. Notice of intent to suspend or terminate shall be given |
25 | by the commission to the governor, the majority and minority leaders of the defaulting state's |
26 | legislature, and each of the member states. |
27 | (e) A state that has been terminated is responsible for all assessments, obligations, and |
28 | liabilities incurred through the effective date of termination, including obligations that extend |
29 | beyond the effective date of termination. |
30 | (f) The commission shall not bear any costs related to a state that is found to be in default |
31 | or that has been terminated from the compact, unless agreed upon in writing between the |
32 | commission and the defaulting state. |
33 | (g) The defaulting state may appeal the action of the commission by petitioning the U.S. |
34 | District Court for the District of Columbia or the federal district where the commission has its |
| LC002016 - Page 18 of 22 |
1 | principal offices. The prevailing member shall be awarded all costs of such litigation, including |
2 | reasonable attorneys' fees. |
3 | (h) Dispute Resolution. |
4 | (1) Upon request by a member state, the commission shall attempt to resolve disputes |
5 | related to the compact that arise among member states and between member and non-member |
6 | states. |
7 | (2) The commission shall promulgate a rule providing for both mediation and binding |
8 | dispute resolution for disputes as appropriate. |
9 | (i) Enforcement. |
10 | (1) The commission, in the reasonable exercise of its discretion, shall enforce the |
11 | provisions and rules of this compact. |
12 | (2) By majority vote, the commission may initiate legal action in the United States District |
13 | Court for the District of Columbia or the federal district where the commission has its principal |
14 | offices against a member state in default to enforce compliance with the provisions of the compact |
15 | and its promulgated rules and bylaws. The relief sought may include both injunctive relief and |
16 | damages. In the event judicial enforcement is necessary, the prevailing member shall be awarded |
17 | all costs of such litigation, including reasonable attorneys' fees. |
18 | (3) The remedies herein shall not be the exclusive remedies of the commission. The |
19 | commission may pursue any other remedies available under federal or state law. |
20 | 5-39.2-13. Date of implementation of the counseling compact commission and |
21 | associated rules, withdrawal and amendment. |
22 | (a) The compact shall come into effect on the date on which the compact statute is enacted |
23 | into law in the tenth member state. The provisions, which become effective at that time, shall be |
24 | limited to the powers granted to the commission relating to assembly and the promulgation of rules. |
25 | Thereafter, the commission shall meet and exercise rulemaking powers necessary for the |
26 | implementation and administration of the compact. |
27 | (b) Any state that joins the compact subsequent to the commission's initial adoption of the |
28 | rules shall be subject to the rules as they exist on the date on which the compact becomes law in |
29 | that state. Any rule that has been previously adopted by the commission shall have the full force |
30 | and effect of law on the day the compact becomes law in that state. |
31 | (c) Any member state may withdraw from this compact by enacting a statute repealing the |
32 | same. |
33 | (i) A member state's withdrawal shall not take effect until six (6) months after enactment |
34 | of the repealing statute. |
| LC002016 - Page 19 of 22 |
1 | (ii) Withdrawal shall not affect the continuing requirement of the withdrawing state's |
2 | professional counseling licensing board to comply with the investigative and adverse action |
3 | reporting requirements of this compact prior to the effective date of withdrawal. |
4 | (d) Nothing contained in this compact shall be construed to invalidate or prevent any |
5 | professional counseling licensure agreement or other cooperative arrangement between a member |
6 | state and a non-member state that does not conflict with the provisions of this compact. |
7 | (e) This compact may be amended by the member states. No amendment to this compact |
8 | shall become effective and binding upon any member state until it is enacted into the laws of all |
9 | member states. |
10 | 5-39.2-14. Construction and severability. |
11 | This compact shall be liberally construed in order to effectuate the purposes thereof. The |
12 | provisions of this compact shall be severable and if any phrase, clause, sentence or provision of |
13 | this compact is declared to be contrary to the constitution of any member state or of the United |
14 | States or the applicability thereof to any government, agency, person or circumstance is held |
15 | invalid, the validity of the remainder of this compact and the applicability thereof to any |
16 | government, agency, person or circumstance shall not be affected thereby. If this compact shall be |
17 | held contrary to the constitution of any member state, the compact shall remain in full force and |
18 | effect as to the remaining member states and in full force and effect as to the member state affected |
19 | as to all severable matters. |
20 | 5-39.2-15. Binding effect of compact and other laws. |
21 | (a) A licensee providing professional counseling services in a remote state under the |
22 | privilege to practice shall adhere to the laws and regulations, including scope of practice, of the |
23 | remote state. |
24 | (b) Nothing herein prevents the enforcement of any other law of a member state that is not |
25 | inconsistent with the compact. |
26 | (c) Any laws in a member state in conflict with the compact are superseded to the extent |
27 | of the conflict. |
28 | (d) Any lawful actions of the commission, including all rules and bylaws properly |
29 | promulgated by the commission, are binding upon the member states. |
30 | (e) All permissible agreements between the commission and the member states are binding |
31 | in accordance with their terms. |
32 | (f) In the event any provision of the compact exceeds the constitutional limits imposed on |
33 | the legislature of any member state, the provision shall be ineffective to the extent of the conflict |
34 | with the constitutional provision in question in that member state. The act also provides for the |
| LC002016 - Page 20 of 22 |
1 | establishment of a commission which may promulgate rules, hire employees, purchase real estate |
2 | and fix their composition among other powers. The commission may levy on and collect an annual |
3 | assessment from each member state. The aggregate annual assessment amount shall be allocated |
4 | based upon a formula to be determined by the commission, which shall promulgate a rule binding |
5 | upon all member states. By majority vote, the commission may initiate legal action in the United |
6 | States District Court for the District of Columbia or the federal district court where the commission |
7 | has its principal office against a member state in default to enforce compliance with the provisions |
8 | of the compact and its promulgated rules and by laws. |
9 | SECTION 3. This act shall take effect upon passage by at least ten (10) states willing to |
10 | join as members of the compact. |
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LC002016 | |
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| LC002016 - Page 21 of 22 |
EXPLANATION | |
BY THE LEGISLATIVE COUNCIL | |
OF | |
A N A C T | |
RELATING TO BUSINESSES AND PROFESSIONS -- COUNSELING COMPACT | |
*** | |
1 | This act would adopt a counseling compact for the interstate practice of licensed |
2 | professional counselors with the goal of improving public access to professional counseling |
3 | services, by providing for the mutual recognition of other member state licenses. This act would |
4 | further provide for the uniformity of professional counseling license requirements throughout the |
5 | United States to promote public safety and public health benefits and eliminate the necessity to |
6 | maintain licenses to practice in multiple states. The act would also provide for the establishment of |
7 | a commission which may promulgate rules, hire employees, and fix their compensation and |
8 | purchase real estate among other powers. The commission may levy on and collect an annual |
9 | assessment from each member state. The aggregate annual assessment amount would be allocated |
10 | based upon a formula to be determined by the commission, which would promulgate a rule binding |
11 | upon all member states. By majority vote, the commission may initiate legal action in the United |
12 | States District Court for the District of Columbia or the federal district court where the commission |
13 | has its principal office against a member state in default to enforce compliance with the provisions |
14 | of the compact and its promulgated rules and by laws. |
15 | This act would take effect upon passage by at least ten (10) states willing to join as |
16 | members of the compact. |
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LC002016 | |
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| LC002016 - Page 22 of 22 |