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ARIZONA HOUSE OF REPRESENTATIVESFifty-sixth Legislature Second Regular Session |
Senate: HHS DP 7-0-0-0 | 3rd Read 23-4-3-0
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SB 1173: licensed professional counselors; compact
Sponsor: Senator Gowan, LD 19
Transmitted to the Governor
Overview
Adopts the Licensed Professional Counselor Compact (Compact), permitting licensed professional counselors (LPC) to obtain licensure in other Compact states. Creates the Counseling Compact Commission (Commission).
History
The practice of professional counseling is the professional application of mental health, psychological and human development theories, principles and techniques to: 1) facilitate human development and adjustment throughout the human life span; 2) assess and facilitate career development; 3) treat interpersonal relationship issues and nervous, mental and emotional disorders that are cognitive, affective or behavioral; 4) manage symptoms of mental illness; and 5) assess, appraise, evaluate, diagnose and treat individuals, couples, families and groups through the use of psychotherapy (A.R.S. § 32-3251).
The mission of the Arizona Board of Behavioral Health Examiners (Board) is to establish and maintain standards of qualifications and performance for licensed behavioral health professionals in the fields of professional counseling, marriage and family therapy, social work and substance abuse counseling and to regulate the practice of licensed behavioral health professionals for protection of the public (A.R.S. §§ 32-3252, 32-3253).
Provisions
Purpose
1.
Declares that the purpose of
this impact is to facilitate interstate practice of LPCs with the goal of
improving public access to professional counseling services.
2. Specifies that the practice of professional counseling occurs in the state where the patient or client is located at the time of the patient or client encounter.
3. Asserts that the Compact preserves the regulatory authority of the states to protect public health and safety through the current system of state licensure.
4. Outlines the objectives the Compact is designed to achieve.
State Participation in the Compact
5. States that in order to participate in the Compact, a state must currently do all of the following:
a) license and regulate LPCs;
b) require licensees to pass a Commission-approved nationally recognized exam;
c) require licensees to complete 60 semester-hours or 90 quarter-hours through a master's degree or graduate coursework in certain areas;
d) require licensees to complete a supervised postgraduate professional experience; and
e) have a mechanism in place for receiving and investigating complaints about licensees.
6. Specifies that the licensees must complete 60 semester-hours or 90 quarter-hours through a master's degree or graduate coursework in the following areas:
a) professional counseling orientation and ethical practice;
b) social and culture diversity;
c) human growth and development;
d) career development;
e) counseling and helping relationships;
f) group counseling and group coursework;
g) diagnosis and treatment;
h) research and program evaluation; and
i) other areas as determined by the Commission.
7. Tasks a member state to do all of the following:
a) participate fully in the Commission's data system, including using the Commission's unique identifier;
b) 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;
c) implement or use procedures for considering the criminal history records of applicants for an initial privilege to practice;
d) comply with the rules of 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 licensure renewal, 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; and
g) provide for the attendance of the state's commissioner to Commission meetings.
8. Specifies that a member state's criminal history record procedures must include:
a) 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 (FBI) and the agency responsible for retaining that state's criminal records;
b) a fully implemented criminal background check requirement within a time frame established by rule by receiving the results of the FBI records search and using the results in making licensure decisions; and
c) communication between a member state and the Commission and among member states regarding the verification of eligibility for licensure through the Compact that does not include any information received from the FBI relating to a federal criminal records check performed by a member state under federal law.
9. Permits member states to charge a fee for granting Compact privilege.
10. Permits individuals not residing in a member state to continue to be able to apply for a member state's single-state license, except that this license does not grant privilege to practice in any other state.
11. Asserts that this does not affect state requirements for issuing a single-state license.
12. Directs each member state to recognize a license issued to an LPC in the person's home state as authorizing the practice of professional counseling in each member state.
Privilege to Practice
13. Declares that in order to exercise Compact privilege, licensees must:
a) hold a license in the licensee's home state;
b) have a valid U.S. social security number or national practitioner identifier;
c) be eligible for privilege to practice in any member state;
d) not have had any encumbrance or restriction against any license or privilege to practice within the previous two years;
e) notify the Commission that the licensee is seeking the privilege to practice within a remote state or states;
f) pay any applicable fees, including any state fee;
g) meet any continuing competence/education requirements established by the home state;
h) meet any jurisprudence requirements established by the remote state or states in which the licensee is seeking privilege to practice; and
i) report to the Commission any adverse action taken by a nonmember state within 30 days.
14. Specifies that privilege to practice is valid until the expiration date of the home state license.
15. Requires licensees to comply with the requirements of the Compact to maintain the privilege to practice in the remote state.
16. Requires a licensee providing professional counseling in a remote state under the privilege to practice must adhere to the remote state's laws and regulations.
17. States that a licensee providing professional counseling services in a remote state is subject to that state's regulatory authority.
18. Allows a remote state to remove a licensee's privilege to practice in their state for a specified period of time, impose fines or take any other necessary actions to protect the health and safety of its citizens.
19. Asserts that licensees may be ineligible for a privilege to practice in any member state until the specific time or removal has passed and all fines and civil penalties are paid.
20. Specifies that if a licensee's home state license is encumbered, the licensee loses the privilege to practice in any remote state until both of the following occur:
a) the home state license is no longer encumbered; and
b) the licensee has not had any encumbrance or restriction against any license or privilege to practice within the previous two years.
21. Specifies that once an encumbered license in a licensee's home state is restored to good standing, the licensee must once again meet the licensure requirements in order to obtain a privilege to practice in any remote state.
22. Asserts that 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 occur:
a) the specific period of time for which the privilege to practice was removed;
b) all fines and civil penalties are paid; and
c) the licensee has not had any encumbrance or restriction against any license or privilege to practice within the previous two years.
Obtaining a New Home State License Based on a Privilege to Practice
23. Stipulates that a home state professional counseling license only entitles a LPC to practice in one member state at a time.
24. Outlines what must occur if a LPC changes primary state of residence by moving between two member states.
25. Specifies that the state criteria for issuance of a single-state license applies if a LPC changes primary state of residence by moving from a member state to a nonmember state or from a nonmember state to a member state.
26. Specifies that, for Compact purposes, a licensee may only have one home state license.
27. Clarifies that this Compact does not interfere with a licensee's ability to hold a single-state license in multiple states or affect the requirements established by a member state for the issuance of a single-state license.
Active-Duty Military Personnel and Their Sources
28. Requires active-duty military personnel or military spouses to designate a home state where the individual has a current license in good standing.
29. Permits active-duty military personnel or military spouses that are LPCs to retain home state designation during the period the service member is on active duty.
30. Specifies that an active-duty service member or military spouse that is a LPC may change home state only through application for licensure in a new state or through the Compact processes.
Compact Privilege to Practice Telehealth
31. Instructs member states to recognize the right of a LPC that is licensed by a home state to practice professional counseling via telehealth under a privilege to practice under the Compact.
32. Requires a LPC in a remote state under the privilege to practice to adhere to the laws and regulations of the remote state.
Adverse Actions
33. Enables remote states the authority, in accordance with existing state due process law, to:
a) take adverse action against a LPC's Compact privilege within that member state; and
b) issue subpoenas for both hearings and investigations that require the attendance and testimony of witnesses as well as the production of evidence.
34. Specifies that 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.
35. Requires an authority that issues subpoena to pay any witness fees, travel expenses, mileage and other fees required by the service statutes of the state where the witnesses or evidence is located.
36. Provides home states the exclusive power to impose adverse action against a LPC license issued by the home state.
37. Specifies that, for purposes of taking adverse action, a home state must 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 and apply its own laws to determine appropriate action.
38. Requires a home state to complete any pending investigations of a LPC who changes primary state of residence during the course of the investigations.
39. Gives a home state the authority to take any appropriate action and promptly report the conclusions of the investigations to the Commission data system.
40. Directs the Administrator of the Coordinated Licensure Information System to promptly notify the new home state of any adverse actions.
41. Permits a member state to recover the costs of investigations and disposition of cases from the affected LPC.
42. Enables a member state to 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.
43. Allows member states to conduct joint investigations of LPCs.
44. Requires member states to share any investigative, litigation or compliance materials in furtherance of any joint or individual investigation.
45. Specifies that if any adverse action is taken by the licensee's home state, a LPC's privileges are deactivated until all encumbrances on the license have been removed.
46. Requires that all home state disciplinary orders that impose adverse action against a LPC's license include a statement that the individual's privilege to practice is deactivated in all member states during the pendency of the order.
47. Requires a member state that takes adverse action to promptly notify the data system administrator.
48. Requires the Data System Administrator to promptly notify the home state of any adverse actions by remote states.
49. Clarifies that the Compact does not override a member state's decision that participation in an alternative program may be used in lieu of adverse action.
Establishment of Counseling Compact Commission
50. Establishes the Commission as an instrumentality of Compact states.
51. Requires judicial proceedings by or against the Commission to be brought solely in court of competent jurisdiction where the Commission's principal office is located.
52. Permits the Commission to waive venue and jurisdictional defenses to the extent it adopts or consents to participate in alternative dispute resolution proceedings.
53. Forbids any provision of the Compact from being construed as a waiver of sovereign immunity.
54. Establishes an executive committee with the power to act on behalf of the Commission.
55. Details membership, authorities and duties of the Commission and the executive committee.
56. Requires Commission meetings to be open to the public, with properly provided public notice.
57. Allows the Commission and the executive committee to convene for a closed, nonpublic meeting if certain topics are discussed.
58. Directs the Commission's legal counsel or designee to certify that a meeting is closed and reference each relevant exempting provision.
59. Requires the Commission to keep minutes of meetings and provide a full and accurate summary of actions taken.
60. Requires all minutes and documents of a closed meeting to remain under seal, subject to release by a court order or a majority vote of the Commission.
61. Outlines financial requirements and authorities of the Commission.
62. Holds harmless from liability the members, officers, executive director, employees and representatives of the Commission for any claim for damage to or loss of property, personal injury or other civil liability caused by an act, error or omission that occurred, unless the damage, loss, injury or liability was caused by the intentional, willful or wanton misconduct of that person.
63. Directs the Commission to defend any member, officer, executive director, employee or representative of the Commission in any civil action seeking to impose liability for an act, error or omission that occurred within the scope of Commission employment, duties or responsibilities.
64. Permits a person to retain private counsel in any action against the person if the act was not a result of intentional, willful or wanton misconduct.
65. Directs the Commission to indemnify and hold harmless any member, officer, executive director, employee or Commission representative for the amount of any settlement or judgment obtained against that person arising out of an act, error or omission that occurred within the scope of Commission employment, duties or responsibilities if the act was not a result of intentional, willful or wanton misconduct.
Data System
66. Directs the Commission to develop, maintain and utilize a coordinated database and reporting system containing licensure, adverse action and investigative information on all licensed individuals in member states.
67. Directs member states to submit uniform data sets to the data system on all Compact individuals using a unique identifier, including:
a) identifying information;
b) licensure data;
c) adverse actions against a license or Compact privilege;
d) nonconfidential information related to alternative program participation;
e) any denial of licensure and the reasons why;
f) other information that may facilitate Compact administration; and
g) current significant investigative information.
68. Requires investigative information pertaining to a license in any member state to be available only to other member states.
69. Requires the Commission to promptly notify all member states of any adverse action taken against a licensee or applicant.
70. Allows member states that contribute information to the data system to designate confidential information that may not be shared without expressed permission.
71. Requires any data system information that must be expunged to be removed from the data system.
Rulemaking
72. Directs the Commission to promulgate reasonable rules to effectively and efficiently achieve the purpose of the Compact.
73. Specifies that, if the Commission exercises its rulemaking authority in a manner beyond the scope of the Compact, the action is invalid and has no force or effect.
74. Directs the Commission to exercise its rulemaking authorities pursuant to the Compact and rules established under the Compact.
75. Deems that rules and amendments to the rules become binding as of the date specified in each rule or amendment.
76. Specifies that a rule has no further force or effect in any member state 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 years of the adoption of the rule.
77. Requires rules or amendments to the rules to be adopted at a regular or special meeting.
78. Requires the Commission, before adopting a final rule, to file a notice of proposed rulemaking at least 30 days before the meeting at which the rule will be considered and voted on, with notice provided on the website of:
a) the Commission or other publicly accessible platform; and
b) each member state's professional counseling licensing board or other publicly accessible platform in which each state would otherwise publish proposed rules.
79. Outlines requirements for notice of proposed rulemaking.
80. Requires the Commission to grant an opportunity for a public hearing before it adopts a rule or amendment if requested by:
a) at least 25 people;
b) a state or federal governmental subdivision or agency; or
c) an association with at least 25 members.
81. Prescribes procedures for when the Commission holds a hearing on a proposed rule or amendment to the rule.
82. Allows the Commission to proceed with adopting a proposed rule without a public hearing if no written notice of intent to attend the public hearing by interested parties is received.
83. Allows the Commission to consider and adopt an emergency rule without prior notice, an opportunity for comment or a hearing if the Commission determines that there is an emergency and usual rulemaking procedures provided in the Compact are retroactively applied as soon as reasonably possible, within 90 days.
84. Asserts that an emergency rule is one that must be adopted immediately in order to do one of the following:
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
d) protect public health and safety.
85. Allows the Commission or an authorized committee to direct revisions to a previously adopted rule or amendment for purposes of correcting typographical errors, errors in format, errors in consistency or grammatical errors.
86. Requires public notice of any revisions to be posted on the Commission website.
87. Specifies that revisions are subject to challenge by any person for 30 days on the grounds that the revision results in a material change to a rule.
88. Requires any challenge to be made in writing and delivered to the Chairperson of the Commission before the end of the notice period.
89. Specifies that the revision takes effect without further action if no challenge is made.
90. Specifies that, if the revision is challenged, the revision may not take effect without the approval of the Commission.
Oversight, Dispute Resolution and Enforcement
91. Directs the executive, legislative and judicial branches of state government in each member state to enforce the Compact and take all actions necessary and appropriate to effectuate the compact's purposes and intent.
92. Asserts that the provisions of the Compact and the rules promulgated under the Compact have standing as statutory law.
93. Instructs all courts to take judicial notice of the Compact and the rules in any judicial or administrative proceeding in a member state that pertain to the Compact that may affect the powers, responsibilities or actions of the Commission.
94. Grants the Commission the right to receive service of process as well as standing to intervene in a proceeding for all purposes.
95. States that failure to provide service of process to the Commission renders a judgment or order void.
96. Directs the Commission, if a member state has defaulted in the performance of its obligations or responsibilities under the Compact to:
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 or any other action to be taken by the Commission; and
b) provide remedial training and specific technical assistance regarding the default.
97. Permits a defaulting state that fails to cure a default to be terminated from the Compact, upon a majority vote of member states.
98. Specifies that curing a default does not relieve an offending state of obligations or liabilities incurred during the period of default.
99. Permits termination of Compact membership only after all other means of securing compliance have been exhausted.
100. Directs the Commission to provide notice of intent to suspend or terminate a state to the governor, the majority and minority leaders of the state's legislature and each of the member states.
101. Specifies that a terminated state is responsible for all assessments, obligations and liabilities incurred, including obligations that extend beyond the effective date of termination.
102. Prohibits the Commission from bearing any costs related to a state that is found to be in default or that has been terminated from the Compact, unless agreed to in writing between the Commission and defaulting state.
103. Permits a defaulting state to appeal an 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.
104. Grants all costs of litigation, including reasonable attorney fees, to the prevailing party.
105. Requires the Commission to attempt to resolve Compact disputes between member states or between member states and nonmember states upon request by a member state.
106. Directs the Commission to promulgate a rule providing for both mediation and binding dispute resolution.
107. Instructs the Commission, in the reasonable exercise of its discretion, to enforce the provisions and rules of the Compact.
108. Allows the Commission, by majority vote, to initiate legal action in the U.S. District Court for the District of Columbia or the federal district where the Commission has its principal offices against a defaulting member state to enforce Compact compliance, including seeking both injunctive relief and damages.
109. Stipulates that, if judicial enforcement is necessary, the prevailing member is awarded all costs of litigation, including reasonable attorney fees.
110. Asserts that Compact remedies are not the exclusive remedies of the Commission and that the Commission may pursue any other remedies available under federal or state law.
Date of Implementation, Withdrawals and Amendments
111. Makes the Compact effective on the date that the Compact is adopted by a 10th member state.
112. States that the provisions of the Compact become effective at that time and are limited to the powers granted to the Commission relating to assembly and the promulgation of rules.
113. Directs the Commission to meet and exercise rulemaking powers necessary to implement and administer the Compact upon the effective date.
114. Stipulates that any state that joins the Compact subsequent to the Commission's initial adoption of rules is subject to the rules in place on the effective date of the Compact.
115. Allows any member state to withdraw from the Compact by enacting a statute repealing the Compact.
116. Clarifies that the withdrawal of a member state:
a) does not take effect until six months after enactment of the repealing statute; and
b) 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 date of withdrawal.
117. Clarifies that this Compact does not invalidate or prevent any professional counseling licensure agreement or other cooperative arrangement between a member state and a nonmember state that does not conflict with the Compact.
118. Allows the Compact to be amended by the member states.
119. States that a Compact amendment does not become effective and binding until it is enacted by all member states.
Construction and Severability
120. Declares the Compact to be liberally construed so as to effectuate its purposes.
121. States that the Compact provisions are 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, the validity of the remainder of the Compact and the applicability to any government, agency, person or circumstance is not affected.
122. Requires the Compact, if it violates the constitution of a member state, to remain in full force and effect for:
a) the remaining member states; and
b) all severable matters of the affected member state.
Binding Effect of Compact and Other Laws
123. Instructs LPCs providing professional counseling services in a remote state under the privilege to practice to adhere to the laws and regulations, including scope of practice, of the remote state.
124. Asserts that this Compact does not prevent the enforcement of any other law of a member state that is not inconsistent with the Compact.
125. Specifies that any laws in a member state that conflict with the Compact are superseded to the extent of the conflict.
126. Declares any lawful actions of the Commission, including all rules and bylaws properly promulgated by the Commission, are binding on the member states.
127. States that all permissible agreements between the Commission and member states are binding in accordance with their terms.
128. Specifies that if any provision of the Compact exceeds the legislative constitutional limits of a member state, the provision is ineffective to the extent of the conflict.
Miscellaneous
129. Defines terms.
130.
131.
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133. SB 1173
134. Initials AG Page 0 Transmitted
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