SB322

SECTION 1. The Hawaii Revised Statutes is amended by adding a new chapter to be appropriately designated and to read as follows:

"Interstate Licensed Professional Counselors Compact

§ -1 Short title. This chapter may be cited as the Interstate Licensed Professional Counselors Compact.

§ -2 Terms and provisions of compact. The legislature hereby authorizes the governor to enter into a compact on behalf of the State of Hawaii and any of the United States or other jurisdictions legally joining therein, in the form substantially as follows:

Section 1.

Purpose

The purpose of this Compact is to facilitate interstate

practice of Licensed Professional Counselors with the goal of

improving public access to Professional Counseling services. The

practice of Professional Counseling occurs in the State where the client is located at the time of the counseling services. The Compact preserves the regulatory authority of States to protect public health and safety through the current system of State licensure.

This Compact is designed to achieve the following

objectives:

A. Increase public access to Professional Counseling

services by providing for the mutual recognition of other Member

State licenses;

B. Enhance the States' ability to protect the public's health and safety;

C. Encourage the cooperation of Member States in

regulating multistate practice for Licensed Professional

Counselors;

D. Support spouses of relocating Active Duty Military

personnel;

E. Enhance the exchange of licensure, investigative, and

disciplinary information among Member States;

F. Allow for the use of Telehealth technology to

facilitate increased access to Professional Counseling services;

G. Support the uniformity of Professional Counseling

licensure requirements throughout the States to promote public

safety and public health benefits;

H. Invest all Member States with the authority to hold a

Licensed Professional Counselor accountable for meeting all

State practice laws in the State in which the client is located at the time care is rendered through the mutual recognition of

Member State licenses;

I. Eliminate the necessity for licenses in multiple states; and

J. Provide opportunities for interstate practice by Licensed Professional Counselors who meet uniform licensure

requirements.

Section 2.

Definitions

As used in this Compact, and except as otherwise provided,

the following definitions shall apply:

A. "Active Duty Military" means full-time duty status in

the active uniformed service of the United States, including

members of the National Guard and Reserve on active duty orders

pursuant to 10 U.S.C. Chapters 1209 and 1211.

B. "Adverse Action" means any administrative, civil,

equitable, or criminal action permitted by a State's laws 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, or any other Encumbrance on licensure affecting a Licensed Professional Counselor's authorization to practice, including issuance of a cease and desist action.

C. "Alternative Program" means a non-disciplinary

monitoring or practice remediation process approved by a

Professional Counseling Licensing Board to address Impaired

Practitioners.

D. "Continuing Competence/Education" means a

requirement, as a condition of license renewal, to provide

evidence of participation in, or completion of, educational and

professional activities relevant to practice or area of work.

E. "Counseling Compact Commission" or "Commission" means

the national administrative body whose membership consists of

all States that have enacted the Compact.

F. "Current Significant Investigative Information" means:

1. Investigative Information that a Licensing Board, after

a preliminary inquiry that includes notification and an

opportunity for the Licensed Professional Counselor to respond,

if required by State law, has reason to believe is not groundless and, if proved true, would indicate more than a minor infraction; or

2. Investigative Information that indicates that the

Licensed Professional Counselor represents an immediate threat

to public health and safety regardless of whether the Licensed

Professional Counselor has been notified and had an opportunity

to respond.

G. "Data System" means a repository of information about

Licensees, including, but not limited to, continuing education,

examination, licensure, investigative, Privilege to Practice, and Adverse Action information.

H. "Encumbered License" means a license in which an

Adverse Action restricts the practice of licensed professional

counseling by the Licensee and said Adverse Action has been

reported to the National Practitioners Data Bank (NPDB).

I. "Encumbrance" means a revocation or suspension of, or any limitation on, the full and unrestricted practice of Licensed Professional Counseling by a Licensing Board.

J. "Executive Committee" means a group of directors

elected or appointed to act on behalf of, and within the powers

granted to them by, the Commission.

K. "Home State" means the Member State that is the

Licensee's primary state of residence.

L. "Impaired Practitioner" means an individual who has a

condition that may impair their ability to practice as a Licensed Professional Counselor without some type of intervention and may include, but is not limited to, alcohol and drug dependence, mental health impairment, and neurological or physical impairments.

M. "Investigative Information" means information, records,

and documents received or generated by a professional

Counseling Licensing Board pursuant to an investigation.

N. "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.

O. "Licensed Professional Counselor" means a counselor

licensed by a Member State, regardless of the title used by that

State, to independently assess, diagnose, and treat behavioral

health conditions.

P. "Licensee" means an individual who currently holds an

authorization from the State to practice as a Licensed

Professional Counselor.

Q. "Licensing Board" means the agency of a State, or

equivalent, that is responsible for the licensing and regulation of Licensed Professional Counselors.

R. "Member State" means a State that has enacted the

Compact.

S. "Privilege to Practice" means a legal authorization,

which is equivalent to a license, permitting the practice of

Professional Counseling in a Remote State.

T. "Professional Counseling" means the assessment,

diagnosis, and treatment of behavioral health conditions by a

Licensed Professional Counselor.

U. "Remote State" means a Member State other than the

Home State, where a Licensee is exercising or seeking to exercise the Privilege to Practice.

V. "Rule" means a regulation promulgated by the

Commission that has the force of law.

W. "Single State License" means a Licensed Professional

Counselor license issued by a Member State that authorizes

practice only within the issuing State and does not include a

Privilege to Practice in any other Member State.

X. "State" means any state, commonwealth, district, or

territory of the United States of America that regulates the

practice of Professional Counseling.

Y. "Telehealth" means the application of

telecommunication technology to deliver Professional

Counseling services remotely to assess, diagnose, and treat

behavioral health conditions.

Z. "Unencumbered License" means a license that authorizes

a Licensed Professional Counselor to engage in the full and

unrestricted practice of Professional Counseling.

Section 3.

State Participation in the Compact

A. To Participate in the Compact, a State must currently:

1. License and regulate Licensed Professional Counselors;

2. Require Licensees to pass a nationally recognized exam

approved by the Commission;

3. 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 course work, including the

following topic areas:

a. Professional Counseling Orientation and Ethical

Practice;

b. Social and Cultural Diversity;

c. Human Growth and Development;

d. Career Development;

e. Counseling and Helping Relationships;

f. Group Counseling and Group Work;

g. Diagnosis and Treatment; Assessment and Testing;

h. Research and Program Evaluation; and

i. Other areas as determined by the Commission.

4. Require Licensees to complete a supervised postgraduate

professional experience as defined by the Commission;

5. Have a mechanism in place for receiving and investigating complaints about Licensees.

B. A Member State shall:

1. Participate fully in the Commission's Data System,

including using the Commission's unique identifier as defined in

Rules;

2. Notify the Commission, in compliance with the terms of

the Compact and Rules, of any Adverse Action or the availability

of Investigative Information regarding a Licensee;

3. Implement or utilize procedures for considering the

criminal history records of applicants for an initial Privilege to Practice. These procedures shall 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;

a. A Member State must fully implement a criminal

background check requirement, within a time frame established by

Rule, by receiving the results of the Federal Bureau of

Investigation record search and shall use the results in making

licensure decisions.

b. Communication between a Member State, the Commission,

and among Member States regarding the verification of eligibility for licensure through the Compact shall not include any information received from the federal bureau of investigation relating to a federal criminal records check performed by a Member State under Public Law 92-544.

4. Comply with the Rules of the Commission;

5. Require an applicant to obtain or retain a license in the Home State and meet the Home State's qualifications for licensure or renewal of licensure, as well as all other applicable State laws;

6. Grant the Privilege to Practice to a Licensee holding a

valid Unencumbered License in another Member State in

accordance with the terms of the Compact and Rules; and

7. Provide for the attendance of the State's Commissioner

to the Counseling Compact Commission meetings.

C. Member States may charge a fee for granting the Privilege to Practice.

D. Individuals not residing in a Member State shall

continue to be able to apply for a Member State's Single State

License as provided under the laws of each Member State.

However, the Single State License granted to these individuals

shall not be recognized as granting a Privilege to Practice

Professional Counseling in any other Member State.

E. Nothing in this Compact shall affect the requirements

established by a Member State for the issuance of a Single State

License.

F. A license issued to a Licensed Professional Counselor by a Home State to a resident in that State shall be recognized by each Member State as authorizing a Licensed Professional

Counselor to practice Professional Counseling, under a Privilege

to Practice in each Member State.

Section 4.

Privilege to Practice

A. To exercise the Privilege to Practice under the terms and provisions of the Compact, the Licensee shall:

1. Hold a license in the Home State;

2. Have a valid United States Social Security Number or

National Practitioner Identifier;

3. Be eligible for a Privilege to Practice in any Member

State in accordance with section 4(D),(G), and (H);

4. Have not had any Encumbrance or restriction against

any license or Privilege to Practice within the previous two (2)

years;

5. Notify the Commission that the Licensee is seeking the

Privilege to Practice within a Remote State(s);

6. Pay any applicable fees, including any State fee, for the Privilege to Practice;

7. Meet any Continuing Competence/Education requirements established by the Home State;

8. Meet any Jurisprudence Requirements established by the

Remote State(s) in which the Licensee is seeking a Privilege to

Practice; and

9. Report to the Commission any Adverse Action,

Encumbrance, or restriction on license taken by any non-Member

State within 30 days from the date the action is taken.

B. The Privilege to Practice is valid until the expiration

date of the Home State license. The Licensee must comply with the requirements of Section 4(A) to maintain the Privilege to Practice in the Remote State.

C. A Licensee providing Professional Counseling in a Remote State under the Privilege to Practice shall adhere to the laws and regulations of the Remote State.

D. A Licensee providing Professional Counseling services in a Remote State is subject to that State's regulatory authority. A Remote State may, in accordance with due process and that State's laws, remove a Licensee's Privilege to Practice in the Remote State for a specific period of time, impose fines, or take any other necessary actions to protect the health and safety of its citizens. The Licensee may be ineligible for a Privilege to Practice in any Member State until the specific time for removal has passed and all fines are paid.

E. If a Home State license is encumbered, the Licensee shall lose the Privilege to Practice in any Remote State until the following occur:

1. The Home State license is no longer encumbered; and

2. The licensee has not had any Encumbrance or restriction

against any license or Privilege to Practice within the previous

two (2) years.

F. Once an Encumbered License in the Home State is

restored to good standing, the Licensee must meet the

requirements of Section 4(A) to obtain a Privilege to Practice in any Remote State.

G. If a Licensee's Privilege to Practice in any Remote State is removed, the individual may lose the Privilege to Practice in all other Remote States until the following occur:

1. The specific period of time for which the Privilege to

Practice was removed has ended;

2. All fines have been paid; and

3. The Licensee has not had any encumbrance or restriction

against any license or Privilege to Practice within the previous

two (2) years.

H. Once the requirements of Section 4(G) have been met, the Licensee must meet the requirements in Section 4(A) to obtain a Privilege to Practice in a Remote State.

Section 5:

Obtaining a New Home State License

Based on a Privilege to Practice

A. A Licensed Professional Counselor may hold a Home

State License, which allows for a Privilege to Practice in other

Member States, in only one Member State at a time.

B. If a Licensed Professional Counselor changes primary

state of residence by moving between two Member States:

1. The Licensed Professional Counselor shall file an

application for obtaining a new Home State license based on a

Privilege to Practice, pay all applicable fees, and notify the

current and new Home State in accordance with applicable rules adopted by the commission.

2. Upon receipt of an application for obtaining a new Home

State license by virtue of a Privilege to Practice, the new Home

State shall verify that the Licensed Professional Counselor

meets the pertinent criteria outlined in Section 4 via the Data

System, without need for primary source verification except for:

a. A Federal Bureau of Investigation fingerprint based

criminal background check if not previously performed or

updated pursuant to applicable rules adopted by the Commission

in accordance with Public Law 92-544;

b. Other criminal background check as required by the new

Home State; and

c. Completion of any requisite Jurisprudence Requirements

of the new Home State.

3. The former Home State shall convert the former Home

State license into a Privilege to Practice once the new Home State has activated the new Home State license in accordance with applicable Rules adopted by the Commission.

4. Notwithstanding any other provision of this Compact, if

the Licensed Professional Counselor cannot meet the criteria in

Section 4, the new Home State may apply its requirements for

issuing a new Single State License.

5. The Licensed Professional Counselor shall pay all

applicable fees to the new Home State in order to be issued a new Home State license.

C. If a Licensed Professional Counselor changes Primary

State of Residence by moving from a Member State to a

non-Member State, or from a non-Member State to a Member

State, the State criteria shall apply for issuance of a Single State License in the new State.

D. Nothing in this Compact shall interfere with a Licensee's ability to hold a Single State License in multiple States, however for the purposes of this Compact, a Licensee shall have only one Home State license.

E. Nothing in this Compact shall affect the requirements

established by a Member State for the issuance of a Single State

License.

Section 6.

Active Duty Military Personnel

Or 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 designation during the period the service member is on active duty. Subsequent to designating a Home State, the individual shall only change their Home State through application for licensure in the new state, or through the process outlined in Section 5.

Section 7.

Compact Privilege to Practice Telehealth

A. Member States shall recognize the right of a Licensed

Professional Counselor, licensed by a Home State in accordance

with Section 3 and under Rules promulgated by the Commission, to

practice Professional Counseling in any Member State via

Telehealth under a Privilege to Practice as provided in the

Compact and Rules promulgated by the Commission.

B. A Licensee providing Professional Counseling services in a Remote State under the Privilege to Practice shall adhere to the laws and regulations of the Remote State.

Section 8.

Adverse Actions

A. In addition to the other powers conferred by State law,

a Remote State shall have the authority, in accordance with

existing State due process law, to:

1. Take Adverse Action against a Licensed Professional

Counselor's Privilege to Practice within that Member State, and

2. Issue subpoenas for both hearings and investigations that require the attendance and testimony of witnesses as well as the production of evidence. Subpoenas issued by a Licensing Board in a Member State for the attendance and testimony of witnesses or the production of evidence from another Member State shall be enforced in the latter State by any court of competent jurisdiction, according to the practice and procedure of that court applicable to subpoenas issued in proceedings pending before it. The issuing authority shall pay any witness fees, travel expenses, mileage, and other fees required by the service statutes of the state in which the witnesses or evidence is located.

3. Only the Home State shall have the power to take

Adverse Action against a Licensed Professional Counselor's

license issued by the Home State.

B. For purposes of taking Adverse Action, the Home State

shall give the same priority and effect to reported conduct

received from a Member State as it would if the conduct had

occurred within the Home State. In so doing, the Home State shall apply its own State laws to determine appropriate action.

C. The Home State shall complete any pending

investigations of a Licensed Professional Counselor who changes

primary State of residence during the course of the

investigations. The Home State shall also have the authority to

take appropriate action(s) and shall promptly report the

conclusions of the investigations to the administrator of the

Data System. The administrator of the coordinated licensure

information system shall promptly notify the new Home State of

any Adverse Actions.

D. A Member State, if otherwise permitted by State law,

may recover from the affected Licensed Professional Counselor

the costs of investigations and dispositions of cases resulting

from any Adverse Action taken against that Licensed

Professional Counselor.

E. A Member State may take Adverse Action based on the

factual findings of the Remote State, provided that the Member

State follows its own procedures for taking the Adverse Action.

F. Joint investigations:

1. In addition to the authority granted to a Member State

by its respective Professional Counseling practice act or other

applicable State law, any Member State may participate with

other Member States in joint investigations of Licensees.

2. Member States shall share any investigative, litigation, or compliance materials in furtherance of any joint or individual investigation initiated under the Compact.

G. If Adverse Action is taken by the Home State against the license of a Licensed Professional Counselor, the Licensed

Professional Counselor's Privilege to Practice in all other

Member States shall be deactivated until all Encumbrances have

been removed from the State license. All Home State disciplinary orders that impose Adverse Action against the license of a Licensed Professional Counselor shall include a Statement that the Licensed Professional Counselor's Privilege to Practice is deactivated in all Member States during the pendency of the order.

H. If a Member State takes Adverse Action, it shall

promptly notify the administrator of the Data System. The

administrator of the Data System shall promptly notify the Home

State of any Adverse Actions by Remote States.

I. Nothing in this Compact shall override a Member State's

decision that participation in an Alternative Program may be used in lieu of Adverse Action.

Section 9.

Establishment of Counseling

Compact Commission

A. The Compact Member States hereby create and establish a joint public agency known as the Counseling Compact

Commission:

1. The Commission is an instrumentality of the Compact

States.

2. Venue is proper and judicial proceedings by or against the Commission shall be brought solely and exclusively in a court of competent jurisdiction where the principal office of the Commission is located. The Commission may waive venue and

jurisdictional defenses to the extent it adopts or consents to

participate in alternative dispute resolution proceedings.

3. Nothing in this Compact shall be construed to be a waiver of sovereign immunity.

B. Membership, Voting, and Meetings

1. Each Member State shall have and be limited to one (1)

delegate selected by that Member State's Licensing Board.

2. The delegate shall be either:

a. A current member of the Licensing Board at the time of

appointment, who is a Licensed Professional Counselor or public

member; or

b. An administrator of the Licensing Board.

3. Any delegate may be removed or suspended from office as

provided by the law of the State from which the delegate is

appointed.

4. The Member State Licensing Board shall fill any

vacancy occurring on the Commission within 60 days.

5. Each delegate shall be entitled to one (1) vote with

regard to the promulgation of Rules and creation of bylaws and

shall otherwise have an opportunity to participate in the business and affairs of the Commission.

6. 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.

7. The Commission shall meet at least once during each

calendar year. Additional meetings shall be held as set forth in the bylaws.

8. The Commission shall by Rule establish a term of office

for delegates and may by Rule establish term limits.

c. The Commission shall have the following powers and

duties:

1. Establish the fiscal year of the Commission;

2. Establish bylaws;

3. Maintain its financial records in accordance with the

bylaws;

4. Meet and take such actions as are consistent with the

provisions of this Compact and the bylaws;

5. Promulgate Rules which shall be binding to the extent

and in the manner provided for in the Compact;

6. Bring and prosecute legal proceedings or actions in the

name of the Commission, provided that the standing of any State

Licensing Board to sue or be sued under applicable law shall not

be affected;

7. Purchase and maintain insurance and bonds;

8. Borrow, accept, or contract for services of personnel,

including, but not limited to, employees of a Member State;

9. Hire employees, elect or appoint officers, fix

compensation, define duties, grant such individuals appropriate

authority to carry out the purposes of the Compact, and establish the Commission's personnel policies and programs relating to conflicts of interest, qualifications of personnel, and other related personnel matters;

10. Accept any and all appropriate donations and grants of

money, equipment, supplies, materials, and services, and to receive, utilize, and dispose of the same; provided that at all times the Commission shall avoid any appearance of impropriety or conflict of interest;

11. Lease, purchase, accept appropriate gifts or donations

of, or otherwise to own, hold, improve or use, any property, real, personal or mixed; provided that at all times the Commission shall avoid any appearance of impropriety;

12. Sell, convey, mortgage, pledge, lease, exchange,

abandon, or otherwise dispose of any property real, personal, or

mixed;

13. Establish a budget and make expenditures;

14. Borrow money;

15. Appoint committees, including standing committees

composed of members, State regulators, State legislators or their representatives, and consumer representatives, and such other interested persons as may be designated in this Compact and the bylaws;

16. Provide and receive information from, and cooperate

with, law enforcement agencies;

17. Establish and elect an Executive Committee; and

18. Perform such other functions as may be necessary or

appropriate to achieve the purposes of this Compact consistent

with the State regulation of Professional Counseling Licensure

and practice.

D. The Executive Committee

1. The Executive Committee shall have the power to act on

behalf of the Commission according to the terms of this Compact.

2. The Executive Committee shall be composed of up to

eleven (11) members:

a. Seven voting members who are elected by the Commission

from the current membership of the Commission; and

b. Up to four (4) ex-officio, nonvoting members from four (4) recognized national professional counselor organizations,

selected by their respective organizations.

3. The Commission may remove any member of the Executive

Committee as provided in bylaws.

4. The Executive Committee shall meet at least annually.

5. The Executive Committee shall have the following duties

and responsibilities:

a. Recommend to the entire Commission changes to the Rules

or bylaws, changes to this Compact legislation, fees paid by

Compact Member States such as annual dues, and any Commission

Compact fee charged to Licensees for the Privilege to Practice;

b. Ensure Compact administration services are

appropriately provided, contractual or otherwise;

c. Prepare and recommend the budget;

d. Maintain financial records on behalf of the Commission;

e. Monitor Compact compliance of Member States and

provide compliance reports to the Commission;

f. Establish additional committees as necessary; and

g. Other duties as provided in Rules or bylaws.

E. Meetings of the Commission

1. All meetings shall be open to the public, and public notice of meetings shall be given in the same manner as required under the Rulemaking provisions in Section 11.

2. The Commission or the Executive Committee or other

committees of the Commission may convene in a closed, non-public

meeting if the Commission or Executive Committee or other

committees of the Commission must discuss:

a. Non-compliance of a Member State with its obligations

under the Compact;

b. The employment, compensation, discipline, or other

matters, practices, or procedures related to specific employees or other matters related to the Commission's internal personnel

practices and procedures;

c. Current, threatened, or reasonably anticipated

litigation;

d. Negotiation of contracts for the purchase, lease, or sale of goods, services, or real estate;

e. Accusing any person of a crime or formally censuring any person;

f. Disclosure of trade secrets or commercial or financial

information that is privileged or confidential;

g. Disclosure of information of a personal nature where

disclosure would constitute a clearly unwarranted invasion of

personal privacy;

h. Disclosure of investigative records compiled for law

enforcement purposes;

i. Disclosure of information related to any investigative

reports prepared by or on behalf of or for use of the Commission

or other committee charged with responsibility of investigation

or determination of compliance issues pursuant to the Compact; or

j. Matters specifically exempted from disclosure by federal or Member State statute.

3. If a meeting, or portion of a meeting, is closed pursuant to this provision, the Commission's legal counsel or designee shall certify that the meeting may be closed and shall reference each relevant exempting provision.

4. The Commission shall keep minutes that fully and

clearly describe all matters discussed in a meeting and shall

provide a full and accurate summary of actions taken, and the

reasons therefore, including a description of the views expressed. All documents considered in connection with an action shall be identified in such minutes. All minutes and documents of a closed meeting shall remain under seal, subject to release by a majority vote of the Commission or order of a court of competent jurisdiction.

F. Financing of the Commission

1. The Commission shall pay, or provide for the payment of, the reasonable expenses of its establishment, organization, and ongoing activities.

2. The Commission may accept any and all appropriate

revenue sources, donations, and grants of money, equipment,

supplies, materials, and services.

3. The Commission may levy on and collect an annual

assessment from each Member State or impose fees on other

parties to cover the cost of the operations and activities of the Commission and its staff, which must be in a total amount

sufficient to cover its annual budget as approved each year for

which revenue is not provided by other sources. The aggregate

annual assessment amount shall be allocated based upon a formula to be determined by the Commission, which shall promulgate a Rule binding upon all Member States.

4. The Commission shall not incur obligations of any kind

prior to securing the funds adequate to meet the same; nor shall

the Commission pledge the credit of any of the Member States,

except by and with the authority of the Member State.

5. The Commission shall keep accurate accounts of all

receipts and disbursements. The receipts and disbursements of the Commission shall be subject to the audit and accounting

procedures established under its bylaws. However, all receipts

and disbursements of funds handled by the Commission shall be

audited yearly by a certified or licensed public accountant, and

the report of the audit shall be included in and become part of the annual report of the Commission.

G. Qualified Immunity, Defense, and Indemnification

1. The members, officers, executive director, employees, and representatives of the Commission shall be 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; provided that nothing in this paragraph shall be construed to protect any such person from suit or liability for any damage, loss, injury, or liability caused by the intentional or willful or wanton misconduct of that person.

2. The Commission shall defend any member, officer,

executive director, employee, or representative of the Commission in any civil action seeking to impose liability arising out of any actual or alleged act, error, or omission that occurred within the scope of Commission employment, duties, or responsibilities, or that the person against whom the claim is made had a reasonable basis for believing occurred within the scope of Commission employment, duties, or responsibilities; provided that nothing herein shall be construed to prohibit that person from retaining his or her own counsel; and provided further, that the actual or alleged act, error, or omission did not result from that person's intentional or willful or wanton misconduct.

3. 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 within the scope of Commission employment, duties, or responsibilities, or that such person had a reasonable basis for believing occurred within the scope of Commission employment, duties, or responsibilities,

provided that the actual or alleged act, error, or omission did

not result from the intentional or willful or wanton misconduct

of that person.

Section 10.

Data System

A. The Commission shall provide for the development,

maintenance, operation, and utilization of a coordinated database and reporting system containing licensure, Adverse Action, and Investigative Information on all licensed individuals in Member States.

B. Notwithstanding any other provision of State law to the

contrary, a Member State shall submit a uniform data set to the

Data System on all individuals to whom this Compact is applicable as required by the Rules of the Commission, including:

1. Identifying information;

2. Licensure data;

3. Adverse Actions against a license or Privilege to

Practice;

4. Non-confidential information related to Alternative

Program participation;

5. Any denial of application for licensure, and the reason(s) for such denial;

6. Current Significant Investigative Information; and

7. Other information that may facilitate the administration of this Compact, as determined by the Rules of the Commission.

C. Investigative Information pertaining to a Licensee in any Member State will only be available to other Member States.

D. 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 will be available to any other Member State.

E. Member States contributing information to the Data

System may designate information that may not be shared with

the public without the express permission of the contributing

State.

F. Any information submitted to the Data System that is

subsequently required to be expunged by the laws of the Member

State contributing the information shall be removed from the

Data System.

Section 11.

Rulemaking

A. The Commission shall promulgate reasonable Rules in

order to effectively and efficiently achieve the purpose of the

Compact. Notwithstanding the foregoing, in the event 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 shall be invalid and have no force or effect.

B. The Commission shall exercise its Rule making powers

pursuant to the criteria set forth in this Section and the Rules

adopted thereunder. Rules and amendments shall become binding

as of the date specified in each Rule or amendment.

C. If a majority of the legislatures of the Member States

rejects a Rule, by enactment of a statute or resolution in the

same manner used to adopt the Compact within four (4) years of

the date of adoption of the Rule, then such Rule shall have no

further force and effect in any Member State.

D. Rules or amendments to the Rules shall be adopted at a

regular or special meeting of the Commission.

E. Prior to promulgation and adoption of a final Rule or

Rules by the Commission, and at least thirty (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 Rule making:

1. On the website of the Commission or other publicly

accessible platform; and

2. On the website of each Member State Professional

Counseling Licensing Board or other publicly accessible platform

or the publication in which each State would otherwise publish

proposed Rules.

F. The Notice of Proposed Rule making shall include:

1. The proposed time, date, and location of the meeting in

which the Rule will be considered and voted upon;

2. The text of the proposed Rule or amendment and the

reason for the proposed Rule;

3. A request for comments on the proposed Rule from any

interested person; and

4. The manner in which interested persons may submit notice to the Commission of their intention to attend the public hearing and any written comments.

G. Prior to adoption of a proposed Rule, the Commission

shall allow persons to submit written data, facts, opinions, and

arguments, which shall be made available to the public.

H. The Commission shall grant an opportunity for a public

hearing before it adopts a Rule or amendment if a hearing is

requested by:

1. At least twenty-five (25) persons;

2. A State or federal governmental subdivision or agency;

3. An association having at least twenty-five (25) members.

I. If a hearing is held on the proposed Rule or amendment,

the Commission shall publish the place, time, and date of the

scheduled public hearing. If the hearing is held via electronic

means, the Commission shall publish the mechanism for access to

the electronic hearing.

1. All persons wishing to be heard at the hearing shall

notify the executive director of the Commission or other

designated member in writing of their desire to appear and testify at the hearing not less than five (5) business days before the scheduled date of the hearing.

2. Hearings shall be conducted in a manner providing each

person who wishes to comment a fair and reasonable opportunity

to comment orally or in writing.

3. All hearings will be recorded. a copy of the recording

will be made available on request.

4. Nothing in this section shall be construed as requiring a separate hearing on each Rule. Rules may be grouped for the

convenience of the Commission at hearings required by this

section.

J. 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.

K. If no written notice of intent to attend the public

hearing by interested parties is received, the Commission may

proceed with promulgation of the proposed Rule without a public

hearing.

L. The Commission shall, by majority vote of all members,

take final action on the proposed Rule and shall determine the

effective date of the Rule, if any, based on the Rule making record and the full text of the Rule.

M. Upon determination that an emergency exists, the

Commission may consider and adopt an emergency Rule without

prior notice, opportunity for comment, or hearing, provided that

the usual Rule-making procedures provided in the Compact and in

this section shall be retroactively applied to the Rule as soon as reasonably possible, in no event later than ninety (90) days after the effective date of the Rule. For the purposes of this provision, an emergency Rule is one that must be adopted immediately in order to:

1. Meet an imminent threat to public health, safety, or

welfare;

2. Prevent a loss of Commission or Member State funds;

3. Meet a deadline for the promulgation of an

administrative Rule that is established by federal law or Rule; or

4. Protect public health and safety.

N. The Commission or an authorized committee of the

Commission may direct revisions to a previously adopted Rule or

amendment for purposes of correcting typographical errors,

errors in format, errors in consistency, or grammatical errors.

Public notice of any revisions shall be posted on the website of the Commission. The revision shall be subject to challenge by any person for a period of thirty (30) days after posting. The revision may be challenged only on grounds that the revision results in a material change to a Rule. A challenge shall be made in writing and delivered to the executive director of the Commission prior to the end of the notice period. If no challenge is made, the revision will take effect without further action. If the revision is challenged, the revision may not take effect without the approval of the Commission.

Section 12.

Oversight, Dispute Resolution,

and Enforcement

A. Oversight

1. The executive, legislative, and judicial branches of State government in each Member State shall enforce this Compact and take all actions necessary and appropriate to effectuate the

Compact's purposes and intent. The provisions of this Compact and the Rules promulgated hereunder shall have standing as

statutory law.

2. All courts shall take judicial notice of the Compact and

the Rules in any judicial or administrative proceeding in a Member State pertaining to the subject matter of this Compact which may affect the powers, responsibilities, or actions of the Commission.

3. The Commission shall be entitled to receive service of

process in any such proceeding and shall have standing to

intervene in such a proceeding for all purposes. Failure to provide service of process to the Commission shall render a judgment or order void as to the Commission, this Compact, or promulgated Rules.

B. Default, Technical Assistance, and Termination

1. If the Commission determines that a Member State has

defaulted in the performance of its obligations or responsibilities under this Compact or the promulgated Rules, the Commission shall:

a. Provide written notice to the defaulting State and other Member States of the nature of the default, the proposed means of curing the default, and any other action to be taken by the Commission; and

b. Provide remedial training and specific technical

assistance regarding the default.

C. 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 this Compact may be

terminated on the effective date of termination. A cure of the

default does not relieve the offending State of obligations or

liabilities incurred during the period of default.

D. Termination of membership in the Compact shall be

imposed only after all other means of securing compliance have

been exhausted. Notice of intent to suspend or terminate shall be given by the Commission to the governor, the majority and

minority leaders of the defaulting State's legislature, and each

of the Member States.

E. A State that has been terminated is responsible for all

assessments, obligations, and liabilities incurred through the

effective date of termination, including obligations that extend

beyond the effective date of termination.

F. The Commission shall not bear any costs related to a

state that is found to be in default or that has been terminated

from the Compact, unless agreed upon in writing between the

Commission and the defaulting State.

G. The defaulting State may appeal the action of the

Commission by petitioning the U.S. District Court for the District of Columbia or the federal district where the Commission has its principal offices. The prevailing member shall be awarded all costs of such litigation, including reasonable attorney's fees.

H. Dispute Resolution

1. Upon request by a Member State, the Commission shall

attempt to resolve disputes related to the Compact that arise

among Member States and between member and non-Member

States.

2. The Commission shall promulgate a Rule providing for

both mediation and binding dispute resolution for disputes as

appropriate.

I. Enforcement

1. The Commission, in the reasonable exercise of its

discretion, shall enforce the provisions and Rules of this Compact.

2. By majority vote, the Commission may initiate legal

action in the United States District Court for the District of

Columbia or the federal district where the Commission has its

principal offices against a Member State in default to enforce

compliance with the provisions of the Compact and its

promulgated Rules and bylaws. The relief sought may include

both injunctive relief and damages. In the event judicial

enforcement is necessary, the prevailing member shall be awarded

all costs of such litigation, including reasonable attorney's fees.

3. The remedies herein shall not be the exclusive remedies

of the Commission. The Commission may pursue any other remedies

available under federal or State law.

Section 13.

Date of Implementation of the Counseling

Compact Commission and Associated Rules,

Withdrawal, and Amendment

A. The Compact shall come into effect on the date on which

the Compact statute is enacted into law in the tenth Member

State. The provisions, which become effective at that time, shall be limited to the powers granted to the Commission relating to assembly and the promulgation of Rules. Thereafter, the Commission shall meet and exercise Rulemaking powers necessary to the implementation and administration of the Compact.

B. Any State that joins the Compact subsequent to the

Commission's initial adoption of the Rules shall be subject to the Rules as they exist on the date on which the Compact becomes law in that State. Any Rule that has been previously adopted by the Commission shall have the full force and effect of law on the day the Compact becomes law in that State.

C. Any Member State may withdraw from this Compact by

enacting a statute repealing the same.

1. A Member State's withdrawal shall not take effect until

six (6) months after enactment of the repealing statute.

2. Withdrawal shall 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 this Compact prior to the effective date of withdrawal.

D. Nothing contained in this Compact shall be construed to

invalidate or prevent any Professional Counseling licensure

agreement or other cooperative arrangement between a Member

State and a non-Member State that does not conflict with the

provisions of this Compact.

E. This Compact may be amended by the Member States. No

amendment to this Compact shall become effective and binding

upon any Member State until it is enacted into the laws of all

Member States.

Section 14.

Construction and Severability

This Compact shall be liberally construed so as to

effectuate the purposes thereof. The provisions of this Compact

shall be severable and if any phrase, clause, sentence, or

provision of this Compact is declared to be contrary to the

constitution of any Member State or of the United States or the

applicability thereof to any government, agency, person, or

circumstance is held invalid, the validity of the remainder of this Compact and the applicability thereof to any government, agency, person, or circumstance shall not be affected thereby. If this Compact shall be held contrary to the constitution of any Member State, the Compact shall remain in full force and effect as to the remaining Member States and in full force and effect as to the Member State affected as to all severable matters.

Section 15.

Binding Effect of Compact and Other Laws

A. A Licensee providing Professional Counseling services in a Remote State under the Privilege to Practice shall adhere to the laws and regulations, including scope of practice, of the

Remote State.

B. Nothing herein prevents the enforcement of any other

law of a Member State that is not inconsistent with the Compact.

C. Any laws in a Member State in conflict with the Compact

are superseded to the extent of the conflict.

D. Any lawful actions of the Commission, including all

Rules and bylaws properly promulgated by the Commission, are

binding upon the Member States.

E. All permissible agreements between the Commission and

the Member States are binding in accordance with their terms.

F. In the event any provision of the Compact exceeds the

constitutional limits imposed on the legislature of any member

state, the provision shall be ineffective to the extent of the

conflict with the constitutional provision in question in that

Member State."

SECTION 2. This Act shall take effect upon its approval.

INTRODUCED BY:	_____________________________

THE SENATE	S.B. NO.	322
THIRTY-SECOND LEGISLATURE, 2023
STATE OF HAWAII