Bill Text: TX HB5289 | 2023-2024 | 88th Legislature | Introduced

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Bill Title: Relating to the professional counselors licensure compact.

Spectrum: Partisan Bill (Republican 1-0)

Status: (Introduced - Dead) 2023-03-24 - Referred to Human Services [HB5289 Detail]

Download: Texas-2023-HB5289-Introduced.html

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88R7898 SCP-D
By: Raney H.B. No. 5289

A BILL TO BE ENTITLED
AN ACT
relating to the professional counselors licensure compact.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Chapter 503, Occupations Code, is amended by
adding Subchapter K to read as follows:
SUBCHAPTER K. PROFESSIONAL COUNSELORS LICENSURE COMPACT
Sec. 503.501. PROFESSIONAL COUNSELORS LICENSURE COMPACT.
The Professional Counselors Licensure Compact is enacted and
entered into with all other jurisdictions that legally join in the
compact, which reads as follows:
ARTICLE I
PURPOSE
The compact is designed to achieve the following purposes and
objectives:
(1) Facilitate interstate practice of licensed professional
counseling to increase public access to professional counseling
services by providing for the mutual recognition of other member
state licenses.
(2) Enhance the member states' ability to protect the
public's health and safety.
(3) Encourage the cooperation of member states in
regulating multistate practice of licensed professional
counselors.
(4) Support spouses of relocating active duty military
personnel.
(5) Facilitate the exchange of information between member
states regarding licensure, investigations, adverse actions, and
disciplinary history of licensed professional counselors.
(6) Allow for the use of telehealth technology to facilitate
increased access to professional counseling services.
(7) Support the uniformity of professional counseling
licensure requirements throughout member states to promote public
safety and public health benefits.
(8) Provide member states with the authority to hold a
licensed professional counselor accountable for meeting all state
practice laws in the state in which the client is located at the
time care is rendered through the mutual recognition of member
state licenses.
(9) Eliminate the necessity for licensed professional
counselors to hold licenses in multiple states and provide
opportunities for interstate practice by licensed professional
counselors who meet uniform licensure requirements.
ARTICLE II
DEFINITIONS
As used in this compact, the term:
(1) "Active duty military" means full-time duty status in
the active uniformed service of the United States, including, but
not limited to, members of the National Guard and Reserve on active
duty orders pursuant to 10 U.S.C. chapters 1209 and 1211.
(2) "Adverse action" means any administrative, civil, or
criminal action authorized by a state's laws which is imposed by a
licensing board or other authority against a licensed professional
counselor, including actions against an individual's license or
privilege to practice, such as revocation, suspension, probation,
monitoring of the licensee, limitation on the licensee's practice,
issuance of a cease and desist action, or any other encumbrance on
licensure affecting a licensed professional counselor's
authorization to practice.
(3) "Alternative program" means a nondisciplinary
monitoring or practice remediation process approved by a
professional counseling licensing board to address impaired
practitioners.
(4) "Continuing education" means a requirement, as a
condition of license renewal, to participate in or complete
educational and professional activities relevant to the licensee's
practice or area of work.
(5) "Counseling Compact Commission" or "commission" means
the national administrative body whose membership consists of all
states that have enacted the compact.
(6) "Current significant investigative information" means:
(a) Investigative information that a licensing board, after
a preliminary inquiry that includes notification and an opportunity
for the licensed professional counselor to respond, if required by
state law, has reason to believe is not groundless and, if proved
true, would indicate more than a minor infraction; or
(b) Investigative information that indicates that the
licensed professional counselor represents an immediate threat to
public health and safety, regardless of whether the licensed
professional counselor has been notified and had an opportunity to
respond.
(7) "Data system" means a repository of information about
licensees, including, but not limited to, information relating to
continuing education, examinations, licensure statuses,
investigations, the privilege to practice, and adverse actions.
(8) "Encumbered license" means a license in which an adverse
action restricts the practice of licensed professional counseling
by the licensee and said adverse action has been reported to the
National Practitioner Data Bank.
(9) "Encumbrance" means a revocation or suspension of, or
any limitation on, the full and unrestricted practice of licensed
professional counseling by a licensing board.
(10) "Executive committee" means a group of directors
elected or appointed to act on behalf of, and within the powers
granted to them by, the commission.
(11) "Home state" means the member state that is the
licensee's primary state of residence.
(12) "Impaired practitioner" means an individual who has a
condition that may impair his or her ability to safely practice as a
licensed professional counselor without intervention. Such
impairment may include, but is not limited to, alcohol or drug
dependence, mental health conditions, and neurological or physical
conditions.
(13) "Investigative information" means information,
records, or documents received or generated by a professional
counseling licensing board pursuant to an investigation.
(14) "Jurisprudence requirement," if required by a member
state, means the assessment of an individual's knowledge of the
laws and rules governing the practice of professional counseling in
a state.
(15) "Licensed professional counselor" means a counselor
licensed by a member state, regardless of the title used by that
state, to independently assess, diagnose, and treat behavioral
health conditions.
(16) "Licensee" means an individual who currently holds an
authorization from the state to practice as a licensed professional
counselor.
(17) "Licensing board" means the agency of a state, or
equivalent, that is responsible for the licensing and regulation of
licensed professional counselors.
(18) "Member state" means a state that has enacted the
compact.
(19) "Privilege to practice" means a legal authorization,
which is equivalent to a license, authorizing the practice of
professional counseling in a remote state.
(20) "Professional counseling" means the assessment,
diagnosis, and treatment of behavioral health conditions by a
licensed professional counselor.
(21) "Remote state" means a member state, other than the
home state, where a licensee is exercising or seeking to exercise
the privilege to practice.
(22) "Rule" means a regulation adopted by the commission
which has the force of law.
(23) "Single state license" means a licensed professional
counselor license issued by a member state which authorizes
practice only within the issuing state and does not include a
privilege to practice in any other member state.
(24) "State" means any state, commonwealth, district, or
territory of the United States of America which regulates the
practice of professional counseling.
(25) "Telehealth" means the application of
telecommunication technology to deliver professional counseling
services remotely to assess, diagnose, and treat behavioral health
conditions.
(26) "Unencumbered license" means a license that authorizes
a licensed professional counselor to engage in the full and
unrestricted practice of professional counseling.
ARTICLE III
STATE PARTICIPATION
(1) To participate in the compact, a state must currently do
all of the following:
(a) License and regulate licensed professional counselors.
(b) Require licensees to pass a nationally recognized exam
approved by the commission.
(c) Require licensees to have a 60 semester hour, or 90
quarter hour, master's degree in counseling or 60 semester hours,
or 90 quarter hours, of graduate coursework including all of the
following topic areas:
1. Professional counseling orientation and ethical
practice.
2. Social and cultural diversity.
3. Human growth and development.
4. Career development.
5. Counseling and helping relationships.
6. Group counseling and group work.
7. Diagnosis, assessment, testing, and treatment.
8. Research and program evaluation.
9. Other areas as determined by the commission.
(d) Require licensees to complete a supervised postgraduate
professional experience as defined by the commission.
(e) Have a mechanism in place for receiving and
investigating complaints about licensees.
(2) A member state shall do all of the following:
(a) Participate fully in the commission's data system,
including using the commission's unique identifier as defined in
rules adopted by the commission.
(b) Notify the commission, in compliance with the terms of
the compact and rules adopted by the commission, of any adverse
action or the availability of investigative information regarding a
licensee.
(c) Implement or utilize procedures for considering the
criminal history records of applicants for an initial privilege to
practice. These procedures must include the submission of
fingerprints or other biometric-based information by applicants
for the purpose of obtaining an applicant's criminal history record
information from the Federal Bureau of Investigation and the agency
responsible for retaining that state's criminal records.
1. A member state must fully implement a criminal background
check requirement, within a timeframe established by rule, by
receiving the results of the Federal Bureau of Investigation record
search and shall use the results in making licensure decisions.
2. Communication between a member state and the commission
and among member states regarding the verification of eligibility
for licensure through the compact may not include any information
received from the Federal Bureau of Investigation relating to a
federal criminal records check performed by a member state under
Public Law 92-544.
(d) Comply with the rules adopted by the commission.
(e) Require an applicant to obtain or retain a license in
the home state and meet the home state's qualifications for
licensure or renewal of licensure, as well as all other applicable
state laws.
(f) Grant the privilege to practice to a licensee holding a
valid unencumbered license in another member state in accordance
with the terms of the compact and rules adopted by the commission.
(g) Provide for the attendance of the state's commissioner
at the commission meetings.
(3) Individuals not residing in a member state may continue
to apply for a member state's single state license as provided under
the laws of each member state. However, the single state license
granted to these individuals may not be recognized as granting a
privilege to practice professional counseling under the compact in
any other member state.
(4) Nothing in this compact affects the requirements
established by a member state for the issuance of a single state
license.
(5) A professional counselor license issued by a home state
to a resident of that state must be recognized by each member state
as authorizing that licensed professional counselor to practice
professional counseling, under a privilege to practice, in each
member state.
ARTICLE IV
PRIVILEGE TO PRACTICE
(1) To exercise the privilege to practice under the terms
and provisions of the compact, the licensee must meet all of the
following criteria:
(a) Hold a license in the home state.
(b) Have a valid United States Social Security Number or
national provider identifier.
(c) Be eligible for a privilege to practice in any member
state in accordance with subsections (4), (7), and (8).
(d) Have not had any encumbrance or restriction against any
license or privilege to practice within the preceding 2 years.
(e) Notify the commission that the licensee is seeking the
privilege to practice within a remote state.
(f) Meet any continuing education requirements established
by the home state.
(g) Meet any jurisprudence requirements established by the
remote state in which the licensee is seeking a privilege to
practice.
(h) Report to the commission any adverse action,
encumbrance, or restriction on a license taken by any nonmember
state within 30 days after the action is taken.
(2) The privilege to practice is valid until the expiration
date of the home state license. The licensee must continue to meet
the criteria specified in subsection (1) to renew the privilege to
practice in the remote state.
(3) For purposes of the compact, the practice of
professional counseling occurs in the state where the client is
located at the time of the counseling services. The compact does
not affect the regulatory authority of states to protect public
health and safety through their own system of state licensure.
(4) A licensee providing professional counseling in a
remote state under the privilege to practice must adhere to the laws
and regulations of the remote state.
(5) A licensee providing professional counseling services
in a remote state is subject to that state's regulatory authority.
A remote state may, in accordance with due process and that state's
laws, remove a licensee's privilege to practice in the remote state
for a specified period of time, impose fines, or take any other
action necessary to protect the health and safety of its residents.
The licensee may be ineligible for a privilege to practice in any
member state until the specific time for removal has passed and all
fines are paid.
(6) If a home state license is encumbered, a licensee loses
the privilege to practice in any remote state until both of the
following conditions are met:
(a) The home state license is no longer encumbered.
(b) The licensee has not had any encumbrance or restriction
against any license or privilege to practice within the preceding 2
years.
(7) Once an encumbered license in the licensee's home state
is restored to good standing, the licensee may obtain a privilege to
practice in any remote state if he or she meets the requirements of
subsection (1).
(8) If a licensee's privilege to practice in any remote
state is removed, the individual may lose the privilege to practice
in all other remote states until all of the following conditions are
met:
(a) The specified period of time for which the privilege to
practice was removed has ended.
(b) The licensee has paid all fines imposed.
(c) The licensee has not had any encumbrance or restriction
against any license or privilege to practice within the preceding 2
years.
(9) Once the requirements of subsection (8) have been met,
the licensee may obtain a privilege to practice in a remote state if
he or she meets the requirements in subsection (1).
ARTICLE V
OBTAINING A NEW HOME STATE LICENSE BASED ON A PRIVILEGE TO PRACTICE
(1) A licensed professional counselor may hold a home state
license, which allows for a privilege to practice in other member
states, in only one member state at a time.
(2) If a licensed professional counselor changes his or her
primary state of residence by moving between two member states,
then the licensed professional counselor must file an application
for obtaining a new home state license based on a privilege to
practice and notify the current and new home state in accordance
with applicable rules adopted by the commission.
(3) Upon receipt of an application for obtaining a new home
state license based on a privilege to practice, the new home state
must verify that the licensed professional counselor meets the
criteria outlined in article IV through the data system. The new
home state does not need to seek primary source verification for
information obtained from the data system, except for the
following:
(a) A Federal Bureau of Investigation fingerprint-based
criminal background check, if not previously performed or updated
pursuant to applicable rules adopted by the commission in
accordance with Public Law 92-544;
(b) Any other criminal background check as required by the
new home state; and
(c) Proof of completion of any requisite jurisprudence
requirements of the new home state.
(4) The former home state shall convert the former home
state license into a privilege to practice once the new home state
has activated the new home state license in accordance with
applicable rules adopted by the commission.
(5) Notwithstanding any other provision of the compact, if
the licensed professional counselor does not meet the criteria in
article IV, the new home state may apply its own requirements for
issuing a new single state license.
(6) If a licensed professional counselor changes his or her
primary state of residence by moving from a member state to a
nonmember state or from a nonmember state to a member state, the new
state's own criteria apply for issuance of a single state license in
the new state.
(7) The compact does not interfere with a licensee's ability
to hold a single state license in multiple states. However, for the
purposes of the compact, a licensee may have only one home state
license.
(8) The compact does not affect the requirements
established by a member state for the issuance of a single state
license.
ARTICLE VI
ACTIVE DUTY MILITARY PERSONNEL AND THEIR SPOUSES
Active duty military personnel, or their spouse, shall
designate a home state where the individual has a current license in
good standing. The individual may retain the home state license
designation during the period the service member is on active duty.
Subsequent to designating a home state, the individual may change
his or her home state only through application for licensure in the
new state or through the process outlined in article V.
ARTICLE VII
COMPACT PRIVILEGE TO PRACTICE TELEHEALTH
(1) Member states shall recognize the right of a licensed
professional counselor, licensed by a home state in accordance with
article III and under rules adopted by the commission, to practice
professional counseling in any member state through telehealth
under a privilege to practice as provided in the compact and rules
adopted by the commission.
(2) A licensee providing professional counseling services
in a remote state through telehealth under the privilege to
practice must adhere to the laws and rules of the remote state.
ARTICLE VIII
ADVERSE ACTIONS
(1) In addition to the other powers conferred by state law,
a remote state has the authority, in accordance with existing state
due process law, to do any of the following:
(a) Take adverse action against a licensed professional
counselor's privilege to practice within that member state.
(b) Issue subpoenas for both hearings and investigations
that require the attendance and testimony of witnesses or the
production of evidence. Subpoenas issued by a licensing board in a
member state for the attendance and testimony of witnesses or the
production of evidence from another member state must be enforced
in the latter state by any court of competent jurisdiction,
according to the practice and procedure of that court applicable to
subpoenas issued in proceedings pending before it. The issuing
authority shall pay any witness fees, travel expenses, mileage, and
other fees required by the service statutes of the state in which
the witnesses or evidence is located.
(2) Only the home state has the power to take adverse action
against a licensed professional counselor's license issued by the
home state.
(3) For purposes of taking adverse action, the home state
shall give the same priority and effect to reported conduct
received from a member state as it would if the conduct had occurred
within the home state. The home state shall apply its own state
laws to determine appropriate action in such cases.
(4) The home state shall complete any pending
investigations of a licensed professional counselor who changes
primary state of residence during the course of the investigations.
The home state may also take appropriate action and shall promptly
report the conclusions of the investigations to the administrator
of the data system. The administrator of the data system shall
promptly notify the new home state of any adverse actions.
(5) A member state, if authorized by state law, may recover
from the affected licensed professional counselor the costs of
investigations and dispositions of any cases resulting from adverse
action taken against that licensed professional counselor.
(6) A member state may take adverse action against a
licensed professional counselor based on the factual findings of a
remote state, provided that the member state follows its own
statutory procedures for taking adverse action.
(7)(a) In addition to the authority granted to a member
state by its respective professional counseling practice act or
other applicable state law, any member state may participate with
other member states in joint investigations of licensees.
(b) Member states shall share any investigative,
litigation, or compliance materials in furtherance of any joint or
individual investigation initiated under the compact.
(8) If adverse action is taken by the home state against the
license of a professional counselor, the licensed professional
counselor's privilege to practice in all other member states must
be deactivated until all encumbrances have been removed from the
home state license. All home state disciplinary orders that impose
adverse action against the license of a professional counselor must
include a statement that the licensed professional counselor's
privilege to practice is deactivated in all member states while the
order is in effect.
(9) If a member state takes adverse action, it must promptly
notify the administrator of the data system. The administrator
shall promptly notify the licensee's home state of any adverse
actions by remote states.
(10) Nothing in the compact overrides a member state's
decision to allow a licensed professional counselor to participate
in an alternative program in lieu of adverse action.
ARTICLE IX
ESTABLISHMENT OF COUNSELING COMPACT COMMISSION
(1) COMMISSION CREATED. — The compact member states hereby
create and establish a joint public agency known as the Counseling
Compact Commission.
(a) The commission is an instrumentality of the compact
states.
(b) Venue is proper, and judicial proceedings by or against
the commission shall be brought solely and exclusively in a court of
competent jurisdiction where the principal office of the commission
is located. The commission may waive venue and jurisdictional
defenses to the extent that it adopts or consents to participate in
alternative dispute resolution proceedings.
(c) Nothing in the compact may be construed to be a waiver of
sovereign immunity.
(2) MEMBERSHIP.-
(a) The commission shall consist of one voting delegate,
appointed by each member state's licensing board. The commission,
by rule, shall establish a term of office for delegates and may
establish term limits.
(b) The delegate must be either:
1. A current member of the licensing board at the time of
appointment, who is a licensed professional counselor or public
member; or
2. An administrator of the licensing board.
(c) A delegate may be removed or suspended from office as
provided by the law of the state from which the delegate is
appointed.
(d) The member state licensing board must fill any vacancy
occurring on the commission within 60 days.
(e) Each delegate is entitled to one vote with regard to the
adoption of rules and creation of bylaws and shall otherwise
participate in the business and affairs of the commission.
(f) A delegate shall vote in person or by such other means as
provided in the bylaws. The bylaws may provide for delegates'
participation in meetings by telephone or other means of
communication.
(3) MEETINGS OF THE COMMISSION.-
(a) The commission shall meet at least once during each
calendar year. Additional meetings must be held as set forth in the
bylaws.
(b) All meetings must be open to the public, and public
notice of meetings must be given in the same manner as required
under the rulemaking provisions in article XI.
(c) The commission or the executive committee or other
committees of the commission may convene in a closed, nonpublic
meeting if the commission or executive committee or other
committees of the commission must discuss any of the following:
1. Noncompliance of a member state with its obligations
under the compact.
2. The employment, compensation, discipline, or other
matters, practices, or procedures related to specific employees, or
other matters related to the commission's internal personnel
practices and procedures.
3. Current, threatened, or reasonably anticipated
litigation.
4. Negotiation of contracts for the purchase, lease, or sale
of goods, services, or real estate.
5. Accusing any person of a crime or formally censuring any
person.
6. Disclosure of trade secrets or commercial or financial
information that is privileged or confidential.
7. Disclosure of information of a personal nature if
disclosure would constitute a clearly unwarranted invasion of
personal privacy.
8. Disclosure of investigative records compiled for law
enforcement purposes.
9. Disclosure of information related to any investigative
reports prepared by or on behalf of or for use of the commission or
other committee charged with responsibility of investigation or
determination of compliance issues pursuant to the compact.
10. Matters specifically exempted from disclosure by
federal or member state law.
(d) If a meeting, or portion of a meeting, is closed under
this subsection, the commission's legal counsel or designee must
certify that the meeting may be closed and must reference each
relevant exempting provision.
(e) 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 must be identified in such
minutes. All minutes and documents of a closed meeting must remain
under seal, subject to release by a majority vote of the commission
or order of a court of competent jurisdiction.
(4) POWERS. — The commission may do any of the following:
(a) Establish the fiscal year of the commission.
(b) Establish bylaws.
(c) Maintain its financial records in accordance with the
bylaws.
(d) Meet and take actions that are consistent with the
compact and bylaws.
(e) Adopt rules that are binding to the extent and in the
manner provided for in the compact.
(f) Initiate and prosecute 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 is not
affected.
(g) Purchase and maintain insurance and bonds.
(h) Borrow, accept, or contract for services of personnel,
including, but not limited to, employees of a member state.
(i) Hire employees and elect or appoint officers; fix
compensation for, define duties of, and grant appropriate authority
to such employees and officers 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.
(j) Accept any and all appropriate donations and grants of
money, equipment, supplies, materials, and services, and receive,
utilize, and dispose of the same, provided that at all times the
commission avoids any appearance of impropriety or conflict of
interest.
(k) Lease, purchase, accept appropriate gifts or donations
of, or otherwise own, hold, improve, or use, any property, real,
personal, or mixed, provided that at all times the commission
avoids any appearance of impropriety or conflict of interest.
(l) Sell, convey, mortgage, pledge, lease, exchange,
abandon, or otherwise dispose of any property, real, personal, or
mixed.
(m) Establish a budget and make expenditures.
(n) Borrow money.
(o) Appoint committees, including standing committees
consisting of commission members, state regulators, state
legislators or their representatives, and consumer
representatives, and such other interested persons as may be
designated in the compact and bylaws.
(p) Provide information to, receive information from, and
cooperate with law enforcement agencies.
(q) Establish and elect an executive committee.
(r) Perform any other function that may be necessary or
appropriate to achieve the purposes of the compact and is
consistent with the state regulation of professional counseling
licensure and practice.
(5) THE EXECUTIVE COMMITTEE.—
(a) The executive committee may act on behalf of the
commission according to the terms of the compact and shall consist
of up to 11 members, as follows:
1. Seven voting members who are elected by the commission
from the current membership of the commission.
2. Up to four ex officio, nonvoting members from four
recognized national professional counselor organizations. The ex
officio members shall be selected by their respective
organizations.
(b) The commission may remove any member of the executive
committee as provided in its bylaws.
(c) The executive committee shall meet at least annually.
(d) The executive committee shall do all of the following:
1. Make recommendations to the commission for any changes to
the rules, bylaws, or compact legislation.
2. Ensure compact administration services are appropriately
provided, contractually or otherwise.
3. Prepare and recommend the budget.
4. Maintain financial records on behalf of the commission.
5. Monitor compact compliance of member states and provide
compliance reports to the commission.
6. Establish additional committees as necessary.
7. Perform any other duties provided for in the rules or
bylaws.
(6) FINANCING OF THE COMMISSION.—
(a) The commission shall pay, or provide for the payment of,
the reasonable expenses of its establishment, organization, and
ongoing activities.
(b) The commission may accept any appropriate revenue
sources, donations, or grants of money, equipment, supplies,
materials, or services.
(c) The commission may not incur obligations of any kind
before securing the funds adequate to meet the same; nor may the
commission pledge the credit of any of the member states, except by
and with the authority of the member state.
(d) The commission shall keep accurate accounts of all
receipts and disbursements. The receipts and disbursements of the
commission are subject to the audit and accounting procedures
established under its bylaws. However, all receipts and
disbursements of funds handled by the commission must be audited
annually by a certified or licensed public accountant, and the
report of the audit must be included in and become part of the
annual report of the commission.
(7) QUALIFIED IMMUNITY, DEFENSE, AND INDEMNIFICATION.—
(a) The members, officers, executive director, employees,
and representatives of the commission are immune from suit and
liability, either personally or in their official capacity, for any
claim for damage to or loss of property or personal injury or other
civil liability caused by or arising out of any actual or alleged
act, error, or omission that occurred, or that the person against
whom the claim is made had a reasonable basis for believing
occurred, within the scope of commission employment, duties, or
responsibilities. This paragraph may not 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.
(b) The commission shall defend any member, officer,
executive director, employee, or representative of the commission
in any civil action seeking to impose liability arising out of any
actual or alleged act, error, or omission that occurred, 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 the actual or alleged
act, error, or omission did not result from that person's
intentional or willful or wanton misconduct. This paragraph may
not be construed to prohibit that person from retaining his or her
own counsel.
(c) The commission shall indemnify and hold harmless any
member, officer, executive director, employee, or representative
of the commission for the amount of any settlement or judgment
obtained against that person arising out of any actual or alleged
act, error, or omission that occurred, 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.
ARTICLE X
DATA SYSTEM
(1) The commission shall provide for the development,
operation, and maintenance of a coordinated database and reporting
system containing licensure, adverse action, and investigative
information on all licensed professional counselors in member
states.
(2) 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 licensees to whom the compact is applicable, as
required by the rules of the commission, including all of the
following:
(a) Identifying information.
(b) Licensure data.
(c) Adverse actions against a license or privilege to
practice.
(d) Nonconfidential information related to alternative
program participation.
(e) Any denial of application for licensure and the reason
for such denial.
(f) Current significant investigative information.
(g) Other information that may facilitate the
administration of the compact, as determined by the rules of the
commission.
(3) Investigative information pertaining to a licensee in
any member state may be made available only to other member states.
(4) The commission shall promptly notify all member states
of any adverse action taken against a licensee or an individual
applying for a license. Adverse action information pertaining to a
licensee in any member state must be made available to any other
member state.
(5) Member states reporting information to the data system
may designate information that may not be shared with the public
without the express permission of the reporting state.
(6) Any information submitted to the data system which is
subsequently required to be expunged by the laws of the member state
reporting the information must be removed from the data system.
ARTICLE XI
RULEMAKING
(1) The commission shall adopt reasonable rules to
effectively and efficiently achieve the purposes of the compact.
If, however, the commission exercises 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
is invalid and has no force or effect.
(2) The commission shall exercise its rulemaking powers
pursuant to the criteria set forth in this article and the rules
adopted thereunder. Rules and amendments become binding as of the
date specified in each rule or amendment.
(3) If a majority of the legislatures of the member states
rejects a rule by enactment of a statute or resolution in the same
manner used to adopt the compact within 4 years after the date of
adoption of the rule, such rule does not have further force and
effect in any member state.
(4) Rules or amendments to the rules must be adopted at a
regular or special meeting of the commission.
(5) Before adoption of a final rule by the commission, and
at least 30 days in advance of the meeting at which the rule will be
considered and voted upon, the commission shall file a notice of
proposed rulemaking:
(a) On the website of the commission or other publicly
accessible platform; and
(b) On the website of each member state's professional
counseling licensing board or other publicly accessible platform or
in the publication in which each state would otherwise publish
proposed rules.
(6) The notice of proposed rulemaking must include:
(a) The proposed time, date, and location of the meeting in
which the rule will be considered and voted upon;
(b) The text of the proposed rule or amendment and the
reason for the proposed rule;
(c) A request for comments on the proposed rule from any
interested person; and
(d) The manner in which interested persons may submit notice
to the commission of their intention to attend the public hearing
and any written comments.
(7) Before adoption of a proposed rule, the commission must
allow persons to submit written data, facts, opinions, and
arguments, which must be made available to the public.
(8) The commission shall grant an opportunity for a public
hearing before it adopts a rule or an amendment if a hearing is
requested by:
(a) At least 25 persons who submit comments independently of
each other;
(b) A state or federal governmental subdivision or agency;
or
(c) An association that has at least 25 members.
(9) If a hearing is held on the proposed rule or amendment,
the commission must publish the place, time, and date of the
scheduled public hearing. If the hearing is held through
electronic means, the commission must publish the mechanism for
access to the electronic hearing.
(a) All persons wishing to be heard at the hearing must
notify the executive director of the commission or other designated
member in writing of their desire to appear and testify at the
hearing at least 5 business days before the scheduled date of the
hearing.
(b) Hearings must be conducted in a manner providing each
person who wishes to comment a fair and reasonable opportunity to
comment orally or in writing.
(c) All hearings must be recorded. A copy of the recording
must be made available on request.
(d) This section may not be construed to require a separate
hearing on each rule. Rules may be grouped at hearings required by
this section for the convenience of the commission.
(10) If the commission does not receive a written notice of
intent to attend the public hearing by interested parties, the
commission may proceed with adoption of the proposed rule without a
public hearing.
(11) 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.
(12) The commission, by majority vote of all members, shall
take final action on the proposed rule and shall determine the
effective date of the rule based on the rulemaking record and the
full text of the rule.
(13) Upon determination that an emergency exists, the
commission may consider and adopt an emergency rule without prior
notice, opportunity for comment, or hearing, provided that the
usual rulemaking procedures provided in the compact and in this
section are retroactively applied to the rule as soon as reasonably
possible, but no later than 90 days after the effective date of the
rule. For purposes of this subsection, an emergency rule is one
that must be adopted immediately in order to:
(a) Meet an imminent threat to public health, safety, or
welfare;
(b) Prevent a loss of commission or member state funds;
(c) Meet a deadline for the adoption of an administrative
rule established by federal law or rule; or
(d) Protect public health and safety.
(14) The commission or an authorized committee of the
commission may direct revisions to a previously adopted rule or
amendment for purposes of correcting typographical errors, errors
in format, errors in consistency, or grammatical errors. Public
notice of any revision must be posted on the website of the
commission. Revisions are subject to challenge by any person for a
period of 30 days after posting. A revision may be challenged only
on grounds that the revision results in a material change to a rule.
A challenge must be made in writing and delivered to the chair of
the commission before the end of the notice period. If a challenge
is not made, the revision takes effect without further action. If a
revision is challenged, the revision may not take effect without
the approval of the commission.
ARTICLE XII
OVERSIGHT; DEFAULT, TECHNICAL ASSISTANCE, AND TERMINATION; DISPUTE
RESOLUTION; AND ENFORCEMENT
(1) OVERSIGHT.—
(a) The executive, legislative, and judicial branches of
state government in each member state shall enforce the compact and
take all actions necessary and appropriate to effectuate the
compact's purposes and intent. The compact and the rules adopted
thereunder have standing as statutory law.
(b) 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 the compact which may
affect the powers, responsibilities, or actions of the commission.
(c) The commission is entitled to receive service of process
in any judicial or administrative proceeding specified in paragraph
(b) and has standing to intervene in such a proceeding for all
purposes. Failure to provide service of process to the commission
renders a judgment or an order void as to the commission, the
compact, or adopted rules.
(2) DEFAULT, TECHNICAL ASSISTANCE, AND TERMINATION.—
(a) If the commission determines that a member state has
defaulted in the performance of its obligations or responsibilities
under the compact or adopted rules, the commission must:
1. Provide written notice to the defaulting state and other
member states of the nature of the default, the proposed means of
curing the default, and any other action to be taken by the
commission; and
2. Provide remedial training and specific technical
assistance regarding the default.
(b) If a state in default fails to cure the default, the
defaulting state may be terminated from the compact upon an
affirmative vote of a majority of the member states, and all rights,
privileges, and benefits conferred by the compact are 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.
(c) Termination of membership in the compact may be imposed
only after all other means of securing compliance have been
exhausted. The commission shall submit a notice of intent to
suspend or terminate a defaulting member state to that state's
governor, to the majority and minority leaders of that state's
legislature, and to each member state.
(d) A member 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.
(e) The commission may not bear any costs related to a
member 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 member state.
(f) The defaulting member state may appeal the action of the
commission by petitioning the United States District Court for the
District of Columbia or the federal district where the commission
has its principal offices. The prevailing party must be awarded all
costs of such litigation, including reasonable attorney fees.
(3) DISPUTE RESOLUTION.—
(a) Upon request by a member state, the commission shall
attempt to resolve disputes related to the compact which arise
among member states and between member and nonmember states.
(b) The commission shall adopt rules providing for both
mediation and binding dispute resolution for disputes as
appropriate.
(4) ENFORCEMENT.—
(a) The commission, in the reasonable exercise of its
discretion, shall enforce the provisions and rules of the compact.
(b) 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 compact and its adopted rules and bylaws. The
relief sought may include both injunctive relief and damages. If
judicial enforcement is necessary, the prevailing party must be
awarded all costs of such litigation, including reasonable attorney
fees.
(c) The remedies under this article are not the exclusive
remedies to the commission. The commission may pursue any other
remedies available under federal or state law.
ARTICLE XIII
DATE OF IMPLEMENTATION OF THE COUNSELING COMPACT COMMISSION AND
ASSOCIATED RULES, WITHDRAWAL, AND AMENDMENT
(1) The compact becomes effective on the date on which the
compact is enacted into law in the 10th member state. The
provisions that become effective at that time are limited to the
powers granted to the commission relating to assembly and the
adoption of rules. Thereafter, the commission shall meet and
exercise rulemaking powers necessary for implementation and
administration of the compact.
(2) Any state that joins the compact subsequent to the
commission's initial adoption of the rules is 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
has the full force and effect of law on the day the compact becomes
law in that state.
(3) Any member state may withdraw from the compact by
enacting a statute repealing the compact.
(a) A member state's withdrawal does not take effect until 6
months after enactment of the repealing statute.
(b) Withdrawal does not affect the continuing requirement
of the withdrawing state's professional counseling licensing board
to comply with the investigative and adverse action reporting
requirements of the compact before the effective date of
withdrawal.
(4) The compact may not be construed to invalidate or
prevent any professional counseling licensure agreement or other
cooperative arrangement between a member state and a nonmember
state which does not conflict with the compact.
(5) The compact may be amended by the member states. An
amendment to the compact is not effective and binding upon any
member state until it is enacted into the laws of all member states.
ARTICLE XIV
BINDING EFFECT OF COMPACT AND OTHER LAWS
(1) A licensee providing professional counseling services
in a remote state under the privilege to practice shall adhere to
the laws and regulations, including scope of practice, of the
remote state.
(2) The compact does not prevent the enforcement of any
other law of a member state which is not inconsistent with the
compact.
(3) Any laws in a member state which conflict with the
compact are superseded to the extent of the conflict.
(4) Any lawful actions of the commission, including all
rules and bylaws properly adopted by the commission, are binding on
the member states.
(5) All permissible agreements between the commission and
the member states are binding in accordance with their terms.
(6) If 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.
ARTICLE XV
CONSTRUCTION AND SEVERABILITY
The compact must be liberally construed so as to effectuate
the purposes thereof. The provisions of the compact are severable,
and if any phrase, clause, sentence, or provision of the 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 the compact and the applicability
thereof to any government, agency, person, or circumstance is not
affected thereby. If the compact is held contrary to the
constitution of any member state, the compact remains 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.
Sec. 503.502. ADMINISTRATION OF COMPACT. The executive
council is the Professional Counselors Licensure Compact
administrator for this state.
Sec. 503.503. RULES. The executive council may adopt rules
necessary to implement this subchapter.
SECTION 2. This Act takes effect September 1, 2023.