HB0942113th GA (Historical)Introduced

Amends TCA Title 4; Title 63, Chapter 4 and Title 63, Chapter 5.

ON APRIL 17, 2023, THE SENATE ADOPTED AMENDMENT #1 AND PASSED SENATE BILL 361, AS AMENDED. AMENDMENT #1 enacts the “Dentist and Dental Hygienist Compact,” as described below. PURPOSES The purposes of this compact are to facilitate the interstate practice of dentistry and dental hygiene and improve public access to dentistry and dental hygiene services by providing dentists and dental hygienists licensed in a participating state the ability to practice in participating states in which they are not licensed. This compact does this by establishing a pathway for dentists and dental hygienists licensed in a participating state to obtain a compact privilege that authorizes them to practice in another participating state in which they are not licensed. This compact enables participating states to protect the public health and safety with respect to the practice of such dentists and dental hygienists through the state's authority to regulate the practice of dentistry and dental hygiene in the state. COMPACT PRIVILEGE In order to obtain and exercise the authorization granted by a remote state to allow a licensee from a participating state to practice as a dentist or dental hygienist in a remote state (“compact privilege”), this compact requires a licensee to meet the following criteria: (1) Have a qualifying license as a dentist or dental hygienist in a participating state; (2) Be eligible for a compact privilege in a participating state where a licensee who is not licensed as a dentist or dental hygienist is exercising or seeking to exercising the compact privilege (“remote state”) in accordance with other provisions of this compact; (3) Submit to an application process when seeking a compact privilege; (4) Pay an applicable commission and remote state fees for a compact privilege in the remote state; (5) Meet the assessment of an individual’s knowledge of the laws and rules governing the practice of dentistry or dental hygiene, as applicable, in a state established by a remote state in which the licensee is seeking a compact privilege; (6) Have passed a national board examination of the joint commission on national dental examinations or another examination accepted by commission rule; (7) For a dentist, have graduated from a predoctoral dental education program accredited by the commission on dental accreditation, or another accrediting agency recognized by the United States Department of Education for the accreditation of dentistry and dental hygiene education programs, leading to the Doctor of Dental Surgery (D.D.S.) or Doctor of Dental Medicine (D.M.D.) degree; (8) For a dental hygienist, have graduated from a dental hygiene education program accredited by the Commission on Dental Accreditation or another accrediting agency recognized by the United States Department of education for the accreditation of dentistry and dental hygiene education programs; (9) Have successfully completed an examination or process, required for licensure as a dentist or dental hygienist as applicable, that provides evidence of clinical competence in dentistry or dental hygiene; (10) Report to the commission a disciplinary action or encumbrance imposed on a license or compact privilege by a state licensing authority (“adverse action”) taken by any non-participating state when applying for a compact privilege and, otherwise, within 30 days from the date the adverse action is taken; (11) Report to the commission when applying for a compact privilege the address of the licensee’s primary residence and thereafter immediately report to the commission any change in the address; and (12) Consent to accept service of process by mail at the licensee’s primary residence on record with the commission with respect to any action brought against the licensee by the commission or a participating state, and consent to accept service of a subpoena by mail at such residence with respect to any action brought to investigation conducted by the commission or a participating state. This compact provides that, if the requirements in (1)-(12) above are met, then the compact privilege continues as long as the licensee maintains a qualifying license, which is not encumbered and is issued by a participating state to practice dentistry or dental hygiene, in the state through which the licensee applied for the compact privilege and pays any applicable renewal fees. A licensee providing dentistry or dental hygiene in a remote state under the compact privilege must function within the scope of practice authorized by the remote state for a dentist or dental hygienist licensed in that state as well as be subject to that state’s regulatory authority. The amendment authorizes the remote state to revoke or remove a licensee’s compact privilege in the remote state for a specific period of time and impose fines or take any other necessary actions to protect the health and safety of its citizens in accordance with due process and that state’s laws. If a remote state imposes an adverse action against a compact privilege that limits the compact privilege, then that adverse action applies to all compact privileges in all remote states. A licensee whose compact privilege in a remote state is removed for a specified period of time is not eligible for a compact privilege in any other remote state until the specific time for removal of the compact privilege has passed and all encumbrance requirements are satisfied. ACTIVE-DUTY MILITARY PERSONNEL OR THEIR SPOUSES An individual in full-time duty status in the active uniformed service of the United States, including members of the National Guard and Reserve (“active-duty military”), and their spouse are not required to pay for a compact privilege the fee otherwise charged by the commission. If a remote state chooses to do so, it may choose to charge a reduced fee or no fee to an active-duty military individual and their spouse. ADVERSE ACTIONS This compact provides that a participating state in which a licensee is licensed has exclusive authority to impose an adverse action against the qualifying license issued by that participating state. A participating state may bring an adverse action based on the significant investigative information of a remote state so long as the participating state follows its own procedures for imposing an adverse action. However, this compact does not override a participating state’s decision that participation in an alterative program may be used in lieu of an adverse action and that such participation must remain non-public if required by the participating state’s laws. Participating states must require licensees who enter any alternative program in lieu of discipline to agree not to practice in any other participating state during the term of the alternative program without prior authorization from such other participating state. This compact authorizes a participating state in which a licensee is applying to practice or is practicing pursuant to a compact privilege to investigate actual or alleged violations of the statutes and regulations authorizing the practice of dentistry or dental hygiene in any other participating state in which the dentist or dental hygienist holds a license or compact privilege. In addition to the authority granted to a participating state by its dentist or dental hygienist licensure act or other applicable state law, a participating state may jointly investigate licensees with other participating states and those states must stare any significant investigative information, litigation, or compliance materials in furtherance of any joint or individual investigation initiated under the compact. After a licensee’s compact privilege is terminated, the remote state may continue an investigation of the licensee that began when the licensee had a compact privilege in that state and if that yields what would have been considered significant investigative information has the licensee continued to have the privilege in the state, the remote state must report the presence of such information to the data system as required under this compact. ESTABLISHMENT OF THE COMMISSION This compact authorizes the participating states to create and establish a joint government agency whose membership consists of all participating states that have enacted the compact ("commission"). The commission is an instrumentality of the participating states acting jointly and not a tool of any singular state. OPERATION OF THE COMMISSION Each of the participating state have and are limited to one commissioner elected by that state’s licensing authority or if the state has more than one state licensing authority, selected collectively by the state licensing authorities. The commissioner must be a member or designee of such authority or authorities. The commission may by rule or bylaw establish a term of office and term limits for the commissioners. In addition, the commission may recommend to a state licensing authority or authorities, as applicable, removal or suspension of an individual as the state’s commissioner. The commission is required to meet at least once during each calendar year. Additional meetings may be held as set forth in the bylaws, including via telecommunication, video conference, or other similar electronic means. Furthermore, all meetings of the commission that are not closed pursuant to this compact are open to the public. Notice of public meetings must be posted on the commission’s website at least 30 days prior to the public meeting. The commission may convene an emergency public meeting by providing at least 24 hours prior notice on the commission’s website, and any other means as provided in the commission’s rules, for any of the reasons it may dispense with notice of proposed rulemaking under this provision. However, the commission may convene in a closed, non-public meeting for the commission to receive legal advice or to discuss the following: (1) Non-compliance of a participating 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 or threatened discipline of a licensee or compact privilege holder by the commission or by a participating state's licensing authority; (4) Current, threatened, or reasonably anticipated litigation’ (5) Negotiation of contracts for the purchase, lease, or sale of goods, services, or real estate; (6) Accusing any person of a crime or formally censuring any person; (7) Trade secrets or commercial or financial information that is privileged or confidential; (8) Information of a personal nature where disclosure would constitute a clearly unwarranted invasion of personal privacy; (9) Investigative records compiled for law enforcement purposes; (10) 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; (11) Matters specifically exempted from disclosure to the public by federal or participating state law; and (12) Other matters as promulgated by the commission by rule. This compact provides that, if a meeting or portion of a meeting is closed, then the presiding officer must state that the meeting will be closed and reference each relevant exempting provision and such reference must be recorded in the minutes. The commission must keep minutes that fully and clearly describe all matters discussed in a meeting and must 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 only by a majority vote of the commission or order of a court of competent jurisdiction. This compact authorizes the commission to levy on and collect an annual assessment from each participating state and impose fees on licensees of participating states when a compact privilege is granted, 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 fiscal year for which sufficient revenue is not provided by other sources. The aggregate annual assessment amount for participating states must be allocated based upon a formula that the commission must promulgate by rule. This compact requires the commission to keep accurate accounts of all receipts and disbursements. The receipts and disbursements of the commission must be subject to the financial review and accounting procedures established under its bylaws. All receipts and disbursements of funds handled by the commission must be subject to an annual financial review by a certified or licensed public accountant, and the report of the financial review shall be included in and become part of the annual report of the commission. EXECUTIVE BOARD This compact provides that the executive board has the power to act on behalf of the commission according to the terms of this compact. The executive board must be composed of up to seven members, including the chair, vice chair, secretary, and treasurer of the commission and any other members of the commission who serve on the executive board must be voting members of the executive board. The commission may remove any member of the executive board as provided in the commission’s bylaws. This compact requires the executive board to meet at least annually. An executive board meeting at which it takes or intends to take formal action on a matter must be open to the public, except that the executive board may meeting in a closed, non-public session of a public meeting when dealing with any of the matters covered under the previously mentioned sections. The executive board must give five business days’ notice of its public meetings, posted on its website and as it may otherwise determine to provide notice to persons with an interest in the public matters the executive board intends to address at those meetings. The executive board may also hold an emergency meeting when acting for the commission to meet an imminent threat to public health, safety, or welfare; prevent a loss of commission or participating state funds; or protect public health and safety. IMMUNITY This compact provides that the members, officers, executive director, employees, and representatives of the commission are immune from suit and liability, both personally and in their official capacity, for any claim for damage to or loss of property or personal injury or other civil liability caused by or arising out of any actual or alleged act, error, or omission that occurred, or that the person against whom the claim is made had a reasonable basis for believing occurred within the scope of commission employment, duties, or responsibilities. However, this provision does not protect any such person from suit or liability for any damage, loss, injury, or liability caused by the intentional or willful or wanton misconduct of that person. The procurement of insurance of any type by the commission does not compromise or limit the immunity granted under this provision. The commission must defend any member, officer, executive director, employee, and 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 as determined by the commission that the person against whom the claim is made had a reasonable basis for believing occurred within the scope of commission employment, duties, or responsibilities as long as the actual or alleged act, error, or omission did not result from that person’s intentional or willful or wanton misconduct. However, this provision does not prohibit that person from retaining their own counsel at their own expense. If a member officer, executive director, employee, or representative of the commission is held liable for the amount of any settlement or judgement arising out of any actual or alleged act, error, or omission that occurred within the scope of that individual’s employment, duties, or responsibilities for the commission, or that the person to whom that individual is liable had a reasonable basis for believing occurred within the scope of the individual’s employment, duties, or responsibilities for the commission, the commission must indemnify and hold harmless such individual so long as the actual or alleged act, error, or omission did not result form the intentional or willful or wanton misconduct of the individual. This provision does not place a limitation on the liability of any licensee for professional malpractice or misconduct, which is governed solely by any other applicable state laws. Additionally, this compact does not waive or otherwise abrogate a participating state’s state action immunity or state action affirmative defense with respect to antitrust claims under the Sherman Act, Clayton Act, or any other state or federal antitrust or anticompetitive law or regulation. Further, participation in this compact does not waive the sovereign immunity by the participating states or by the commission. DATA SYSTEM The commission must provide for the development, maintenance, operation, and utilization of a coordinated database and reporting system containing licensure, adverse action, and the presence of significant investigative information on all licensees and applicants for a license in participating states. A participating state must also 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. The records and information provided to a participating state pursuant to this compact or the data system, when certified by the commission or an agent of the commission, constitutes the authenticated business records of the commission, and is entitled to any associated hearsay exception in any relevant judicial, quasi-judicial, or administrative proceedings in a participating state. Significant investigative information pertaining to a licensee in a participating state will only be available to other participating states. It is the responsibility of the participating states to monitor the database to determine whether adverse action has been taken against a licensee or license applicant. Adverse action information pertaining to a licensee or license applicant in any participating state will be available to any other participating state. Participating 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. Any information submitted to the data system that is subsequently expunged pursuant to federal law or the laws of the participating state contributing the information must be removed from the data system. RULEMAKING The commission must promulgate reasonable rules in order to effectively and efficiently implement and administer the purposes and provisions of the compact. A commission rule will be invalid and have no force or effect only if a court of competent jurisdiction holds that the rule is invalid because the commission exercised its rulemaking authority in a manner that is beyond the scope and purposes of the compact, or the powers granted hereunder, or based upon another applicable standard of review. The rules of the commission must have the force of law in each participating state. However, that where the rules of the commission conflict with the laws of the participating state that establish the participating state's scope of practice as held by a court of competent jurisdiction, the rules of the commission must be ineffective in that state to the extent of the conflict. If a majority of the legislatures of the participating states rejects a commission rule or portion thereof, by enactment of a statute or resolution in the same manner used to adopt the compact, within four years of the date of adoption of the rule, then such rule must have no further force and effect in any participating state or to any state applying to participate in the compact. Rules must be adopted at a regular or special meeting of the commission. Prior to adoption of a proposed rule, the commission must hold a public hearing and allow persons to provide oral and written comments, data, facts, opinions, and arguments. Prior to adoption of a proposed rule by the commission, and at least 30 days in advance of the meeting at which the commission will hold a public hearing on the proposed rule, the commission must provide a notice of proposed rulemaking on the website of the commission or other publicly accessible platform; to persons who have requested notice of the commission’s notices of proposed rulemaking; and in such other ways as the commission may be rule specify. All hearing will be recorded and a copy and all written comments and documents received by the commission in response to the proposed rule must be available to the public. Upon determination that an emergency exists, the commission may consider and adopt an emergency rule with 24 hours' notice, with opportunity to comment, provided that the usual rulemaking procedures provided in the compact and in this section must be retroactively applied to the rule as soon as reasonably possible, in no event later than 90 days after the effective date of the rule. The commission, or an authorized committee of the commission, may direct revisions to a previously adopted rule for purposes of correcting typographical errors, errors in format, errors in consistency, or grammatical errors. Public notice of any revisions must be posted on the website of the commission. The revision must be subject to challenge by any person for a period of 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 must be made in writing and delivered to 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. A participating state's rulemaking requirements does not apply under this compact. OVERSIGHT The executive and judicial branches in each participating state must enforce this compact and take all actions necessary and appropriate to implement the compact. Venue is proper and judicial proceedings by or against the commission must 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. The commission is entitled to receive service of process in any proceeding regarding the enforcement or interpretation of the compact or commission rule and must have standing to intervene in such a proceeding for all purposes. Failure to provide the commission service of process must render a judgment or order void as to the commission, this compact, or promulgated rules. DEFAULT, TECHNICAL ASSISTANCE, AND TERMINATION If the commission determines that a participating state has defaulted in the performance of its obligations or responsibilities under this compact or the promulgated rules, the commission must provide written notice to the defaulting state. 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 commissioners, and all rights, privileges and benefits conferred on that state 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. Termination of participation in the compact must be imposed only after all other means of securing compliance have been exhausted. Notice of intent to suspend or terminate must be given by the commission to the governor, the majority and minority leaders of the defaulting state's legislature, the defaulting state's state licensing authority or authorities, as applicable, and each of the participating states' state licensing authority or authorities, as applicable. 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. Upon the termination of a state's participation in this compact, that state must immediately provide notice to all licensees of the state, including licensees of other participating states issued a compact privilege to practice within that state, of such termination. The terminated state must continue to recognize all compact privileges then in effect in that state for a minimum of 180 days after the date of said notice of termination. The Commission must 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. 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 party must be awarded all costs of such litigation, including reasonable attorney's fees. DISPUTE RESOLUTION Upon request by a participating state, the commission must attempt to resolve disputes related to the compact that arise among participating states and between participating states and non-participating states. The commission must promulgate a rule providing for both mediation and binding dispute resolution for disputes as appropriate. The commission, in the reasonable exercise of its discretion, must enforce the provisions of this compact and the commission's rules. By majority vote, the commission may initiate legal action against a participating state in default in the United States District Court for the District of Columbia or the federal district where the commission has its principal offices to enforce compliance with the provisions of the compact and its promulgated rules. The relief sought may include both injunctive relief and damages. In the event judicial enforcement is necessary, the prevailing party must be awarded all costs of such litigation, including reasonable attorney's fees. The remedies herein must not be the exclusive remedies of the commission. The commission may pursue any other remedies available under federal or the defaulting participating state's law. A participating state may initiate legal action against the commission in the U.S. District Court for the District of Columbia or the federal district where the commission has its principal offices to enforce compliance with the provisions of the compact and its promulgated rules. The relief sought may include both injunctive relief and damages. In the event judicial enforcement is necessary, the prevailing party must be awarded all costs of such litigation, including reasonable attorney's fees. No individual or entity other than a participating state may enforce this compact against the commission. EFFECTIVE DATE, WITHDRAWAL, AND AMENDMENT This compact comes into effect on the date on which the compact statute is enacted into law in the seventh participating state. A participating state may withdraw from this compact by enacting a statute repealing that state's enactment of the compact. A participating state's withdrawal must not take effect until one 180 days after enactment of the repealing statute. Withdrawal must not affect the continuing requirement of the withdrawing state's licensing authority or authorities to comply with the investigative and adverse action reporting requirements of this compact prior to the effective date of withdrawal. Upon the enactment of a statute withdrawing from this compact, the state must immediately provide notice of such withdrawal to all licensees within that state. CONSISTENT EFFECT AND CONFLICT WITH OTHER STATE LAWS This compact does not prevent or inhibit the enforcement of any other law of a participating state that is not inconsistent with the compact. Any laws, statutes, regulations, or other legal requirements in a participating state in conflict with the compact are superseded to the extent of the conflict. All permissible agreements between the commission and the participating states are binding in accordance with their terms. The department of health, in consultation with the board of dentistry, may promulgate rules to implement and amend this part, as necessary, to ensure this state's participation in the compact. The board of dentistry must notify the reviser of statutes, the chair of the government operations committee of the house of representatives, and the chair of the government operations committee of the senate in writing when the compact is so enacted into law. ON APRIL 20, 2023, THE HOUSE SUBSTITUTED SENATE BILL 361 FOR HOUSE BILL 942, ADOPTED AMENDMENT #1 AND PASSED SENATE BILL 361, AS AMENDED. AMENDMENT #1 revises the “Dentist and Dental Hygienist Compact,” to be as described below. PURPOSES The purposes of this compact are to facilitate the interstate practice of dentistry and dental hygiene and improve public access to dentistry and dental hygiene services by providing dentists and dental hygienists licensed in a participating state the ability to practice in participating states in which they are not licensed. This compact does this by establishing a pathway for dentists and dental hygienists licensed in a participating state to obtain a compact privilege that authorizes them to practice in another participating state in which they are not licensed. This compact enables participating states to protect the public health and safety with respect to the practice of such dentists and dental hygienists through the state's authority to regulate the practice of dentistry and dental hygiene in the state. COMPACT PRIVILEGE In order to obtain and exercise the authorization granted by a remote state to allow a licensee from a participating state to practice as a dentist or dental hygienist in a remote state (“compact privilege”), this compact requires a licensee to meet the following criteria: (1) Have a qualifying license as a dentist or dental hygienist in a participating state; (2) Be eligible for a compact privilege in a participating state where a licensee who is not licensed as a dentist or dental hygienist is exercising or seeking to exercising the compact privilege (“remote state”) in accordance with other provisions of this compact; (3) Submit to an application process when seeking a compact privilege; (4) Pay an applicable commission and remote state fees for a compact privilege in the remote state; (5) Meet the assessment of an individual’s knowledge of the laws and rules governing the practice of dentistry or dental hygiene, as applicable, in a state established by a remote state in which the licensee is seeking a compact privilege; (6) Have passed a national board examination of the joint commission on national dental examinations or another examination accepted by commission rule; (7) For a dentist, have graduated from a predoctoral dental education program accredited by the commission on dental accreditation, or another accrediting agency recognized by the United States Department of Education for the accreditation of dentistry and dental hygiene education programs, leading to the Doctor of Dental Surgery (D.D.S.) or Doctor of Dental Medicine (D.M.D.) degree; (8) For a dental hygienist, have graduated from a dental hygiene education program accredited by the Commission on Dental Accreditation or another accrediting agency recognized by the United States Department of education for the accreditation of dentistry and dental hygiene education programs; (9) Have successfully completed an examination or process, required for licensure as a dentist or dental hygienist as applicable, that provides evidence of clinical competence in dentistry or dental hygiene; (10) Report to the commission a disciplinary action or encumbrance imposed on a license or compact privilege by a state licensing authority (“adverse action”) taken by any non-participating state when applying for a compact privilege and, otherwise, within 30 days from the date the adverse action is taken; (11) Report to the commission when applying for a compact privilege the address of the licensee’s primary residence and thereafter immediately report to the commission any change in the address; and (12) Consent to accept service of process by mail at the licensee’s primary residence on record with the commission with respect to any action brought against the licensee by the commission or a participating state, and consent to accept service of a subpoena by mail at such residence with respect to any action brought to investigation conducted by the commission or a participating state. This compact provides that, if the requirements in (1)-(12) above are met, then the compact privilege continues as long as the licensee maintains a qualifying license, which is not encumbered and is issued by a participating state to practice dentistry or dental hygiene, in the state through which the licensee applied for the compact privilege and pays any applicable renewal fees. A licensee providing dentistry or dental hygiene in a remote state under the compact privilege must function within the scope of practice authorized by the remote state for a dentist or dental hygienist licensed in that state as well as be subject to that state’s regulatory authority. The amendment authorizes the remote state to revoke or remove a licensee’s compact privilege in the remote state for a specific period of time and impose fines or take any other necessary actions to protect the health and safety of its citizens in accordance with due process and that state’s laws. If a remote state imposes an adverse action against a compact privilege that limits the compact privilege, then that adverse action applies to all compact privileges in all remote states. A licensee whose compact privilege in a remote state is removed for a specified period of time is not eligible for a compact privilege in any other remote state until the specific time for removal of the compact privilege has passed and all encumbrance requirements are satisfied. ACTIVE MILITARY MEMBER OR THEIR SPOUSES An individual in full-time duty status in the armed forces of the United States, including members of the National Guard and Reserve (“activity military member”), and their spouse are not required to pay for a compact privilege the fee otherwise charged by the commission. If a remote state chooses to do so, it may choose to charge a reduced fee or no fee to an active military member and their spouse. ADVERSE ACTIONS This compact provides that a participating state in which a licensee is licensed has exclusive authority to impose an adverse action against the qualifying license issued by that participating state. A participating state may bring an adverse action based on the significant investigative information of a remote state so long as the participating state follows its own procedures for imposing an adverse action. However, this compact does not override a participating state’s decision that participation in an alternative program may be used in lieu of an adverse action and that such participation must remain non-public if required by the participating state’s laws. Participating states must require licensees who enter any alternative program in lieu of discipline to agree not to practice in any other participating state during the term of the alternative program without prior authorization from such other participating state. This compact authorizes a participating state in which a licensee is applying to practice or is practicing pursuant to a compact privilege to investigate actual or alleged violations of the statutes and regulations authorizing the practice of dentistry or dental hygiene in any other participating state in which the dentist or dental hygienist holds a license or compact privilege. In addition to the authority granted to a participating state by its dentist or dental hygienist licensure act or other applicable state law, a participating state may jointly investigate licensees with other participating states and those states must share any significant investigative information, litigation, or compliance materials in furtherance of any joint investigation initiated under the compact. After a licensee’s compact privilege is terminated, the remote state may continue an investigation of the licensee that began when the licensee had a compact privilege in that state and if that yields what would have been considered significant investigative information has the licensee continued to have the privilege in the state, the remote state must report the presence of such information to the data system as required under this compact. ESTABLISHMENT OF THE COMMISSION This compact authorizes the participating states to create and establish a joint government agency whose membership consists of all participating states that have enacted the compact ("commission"). The commission is an instrumentality of the participating states acting jointly and not a tool of any singular state. OPERATION OF THE COMMISSION Each of the participating states have and are limited to one commissioner elected by that state’s licensing authority or if the state has more than one state licensing authority, selected collectively by the state licensing authorities. The commissioner must be a member or designee of such authority or authorities. The commission may by rule or bylaw establish a term of office and term limits for the commissioners. In addition, the commission may recommend to a state licensing authority or authorities, as applicable, removal or suspension of an individual as the state’s commissioner. The commission is required to meet at least once during each calendar year. Additional meetings may be held as set forth in the bylaws, including via telecommunication, video conference, or other similar electronic means. Furthermore, all meetings of the commission that are not closed pursuant to this compact are open to the public. Notice of public meetings must be posted on the commission’s website at least 30 days prior to the public meeting. The commission may convene an emergency public meeting by providing at least 24 hours prior notice on the commission’s website, and any other means as provided in the commission’s rules, for any of the reasons it may dispense with notice of proposed rulemaking under this provision. However, the commission may convene in a closed, non-public meeting for the commission to receive legal advice or to discuss the following: (1) Non-compliance of a participating 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 or threatened discipline of a licensee or compact privilege holder by the commission or by a participating state's licensing authority; (4) Current, threatened, or reasonably anticipated litigation’ (5) Negotiation of contracts for the purchase, lease, or sale of goods, services, or real estate; (6) Accusing any person of a crime or formally censuring any person; (7) Trade secrets or commercial or financial information that is privileged or confidential; (8) Information of a personal nature where disclosure would constitute a clearly unwarranted invasion of personal privacy; (9) Investigative records compiled for law enforcement purposes; (10) 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; (11) Matters specifically exempted from disclosure to the public by federal or participating state law; and (12) Other matters as promulgated by the commission by rule. This compact provides that, if a meeting or portion of a meeting is closed, then the presiding officer must state that the meeting will be closed and reference each relevant exempting provision and such reference must be recorded in the minutes. The commission must keep minutes that fully and clearly describe all matters discussed in a meeting and must 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 only by a majority vote of the commission or order of a court of competent jurisdiction. This compact authorizes the commission to levy on and collect an annual assessment from each participating state and impose fees on licensees of participating states when a compact privilege is granted, 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 fiscal year for which sufficient revenue is not provided by other sources. The aggregate annual assessment amount for participating states must be allocated based upon a formula that the commission must promulgate by rule. This compact requires the commission to keep accurate accounts of all receipts and disbursements. The receipts and disbursements of the commission must be subject to the financial review and accounting procedures established under its bylaws. All receipts and disbursements of funds handled by the commission must be subject to an annual financial review by a certified or licensed public accountant, and the report of the financial review shall be included in and become part of the annual report of the commission. EXECUTIVE BOARD This compact provides that the executive board has the power to act on behalf of the commission according to the terms of this compact. The executive board must be composed of up to seven members, including the chair, vice chair, secretary, and treasurer of the commission and any other members of the commission who serve on the executive board must be voting members of the executive board. The commission may remove any member of the executive board as provided in the commission’s bylaws. This compact requires the executive board to meet at least annually. An executive board meeting at which it takes or intends to take formal action on a matter must be open to the public, except that the executive board may meeting in a closed, non-public session of a public meeting when dealing with any of the matters covered under the previously mentioned sections. The executive board must give five business days’ notice of its public meetings, posted on its website and as it may otherwise determine to provide notice to persons with an interest in the public matters the executive board intends to address at those meetings. The executive board may also hold an emergency meeting when acting for the commission to meet an imminent threat to public health, safety, or welfare; prevent a loss of commission or participating state funds; or protect public health and safety. IMMUNITY This compact provides that the members, officers, executive director, employees, and representatives of the commission are immune from suit and liability, both personally and in their official capacity, for any claim for damage to or loss of property or personal injury or other civil liability caused by or arising out of any actual or alleged act, error, or omission that occurred, or that the person against whom the claim is made had a reasonable basis for believing occurred within the scope of commission employment, duties, or responsibilities. However, this provision does not protect any such person from suit or liability for any damage, loss, injury, or liability caused by the intentional or willful or wanton misconduct of that person. The procurement of insurance of any type by the commission does not compromise or limit the immunity granted under this provision. The commission must defend any member, officer, executive director, employee, and 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 as determined by the commission that the person against whom the claim is made had a reasonable basis for believing occurred within the scope of commission employment, duties, or responsibilities as long as the actual or alleged act, error, or omission did not result from that person’s intentional or willful or wanton misconduct. However, this provision does not prohibit that person from retaining their own counsel at their own expense. If a member officer, executive director, employee, or representative of the commission is held liable for the amount of any settlement or judgement arising out of any actual or alleged act, error, or omission that occurred within the scope of that individual’s employment, duties, or responsibilities for the commission, or that the person to whom that individual is liable had a reasonable basis for believing occurred within the scope of the individual’s employment, duties, or responsibilities for the commission, the commission must indemnify and hold harmless such individual so long as the actual or alleged act, error, or omission did not result from the intentional or willful or wanton misconduct of the individual. This provision does not place a limitation on the liability of any licensee for professional malpractice or misconduct, which is governed solely by any other applicable state laws. Additionally, this compact does not waive or otherwise abrogate a participating state’s state action immunity or state action affirmative defense with respect to antitrust claims under the Sherman Act, Clayton Act, or any other state or federal antitrust or anticompetitive law or regulation. Further, participation in this compact does not waive the sovereign immunity by the participating states or by the commission. DATA SYSTEM The commission must provide for the development, maintenance, operation, and utilization of a coordinated database and reporting system containing licensure, adverse action, and the presence of significant investigative information on all licensees and applicants for a license in participating states. A participating state must also 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. The records and information provided to a participating state pursuant to this compact or the data system, when certified by the commission or an agent of the commission, constitutes the authenticated business records of the commission, and is entitled to any associated hearsay exception in any relevant judicial, quasi-judicial, or administrative proceedings in a participating state. Significant investigative information pertaining to a licensee in a participating state will only be available to other participating states. It is the responsibility of the participating states to monitor the database to determine whether adverse action has been taken against a licensee or license applicant. Adverse action information pertaining to a licensee or license applicant in any participating state will be available to any other participating state. Participating 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. Any information submitted to the data system that is subsequently expunged pursuant to federal law or the laws of the participating state contributing the information must be removed from the data system. RULEMAKING The commission must promulgate reasonable rules in order to effectively and efficiently implement and administer the purposes and provisions of the compact. A commission rule will be invalid and have no force or effect only if a court of competent jurisdiction holds that the rule is invalid because the commission exercised its rulemaking authority in a manner that is beyond the scope and purposes of the compact, or the powers granted hereunder, or based upon another applicable standard of review. The rules of the commission must have the force of law in each participating state. However, that where the rules of the commission conflict with the laws of the participating state that establish the participating state's scope of practice as held by a court of competent jurisdiction, the rules of the commission must be ineffective in that state to the extent of the conflict. If a majority of the legislatures of the participating states rejects a commission rule or portion thereof, by enactment of a statute or resolution in the same manner used to adopt the compact, within four years of the date of adoption of the rule, then such rule must have no further force and effect in any participating state or to any state applying to participate in the compact. Rules must be adopted at a regular or special meeting of the commission. Prior to adoption of a proposed rule, the commission must hold a public hearing and allow persons to provide oral and written comments, data, facts, opinions, and arguments. Prior to adoption of a proposed rule by the commission, and at least 30 days in advance of the meeting at which the commission will hold a public hearing on the proposed rule, the commission must provide a notice of proposed rulemaking on the website of the commission or other publicly accessible platform; to persons who have requested notice of the commission’s notices of proposed rulemaking; and in such other ways as the commission may be rule specify. All hearing will be recorded and a copy and all written comments and documents received by the commission in response to the proposed rule must be available to the public. Upon determination that an emergency exists, the commission may consider and adopt an emergency rule with 24 hours' notice, with opportunity to comment, provided that the usual rulemaking procedures provided in the compact and in this section must be retroactively applied to the rule as soon as reasonably possible, in no event later than 90 days after the effective date of the rule. The commission, or an authorized committee of the commission, may direct revisions to a previously adopted rule for purposes of correcting typographical errors, errors in format, errors in consistency, or grammatical errors. Public notice of any revisions must be posted on the website of the commission. The revision must be subject to challenge by any person for a period of 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 must be made in writing and delivered to 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. A participating state's rulemaking requirements does not apply under this compact. OVERSIGHT The executive and judicial branches in each participating state must enforce this compact and take all actions necessary and appropriate to implement the compact. Venue is proper and judicial proceedings by or against the commission must 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. The commission is entitled to receive service of process in any proceeding regarding the enforcement or interpretation of the compact or commission rule and must have standing to intervene in such a proceeding for all purposes. Failure to provide the commission service of process must render a judgment or order void as to the commission, this compact, or promulgated rules. DEFAULT, TECHNICAL ASSISTANCE, AND TERMINATION If the commission determines that a participating state has defaulted in the performance of its obligations or responsibilities under this compact or the promulgated rules, the commission must provide written notice to the defaulting state. 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 commissioners, and all rights, privileges and benefits conferred on that state 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. Termination of participation in the compact must be imposed only after all other means of securing compliance have been exhausted. Notice of intent to suspend or terminate must be given by the commission to the governor, the majority and minority leaders of the defaulting state's legislature, the defaulting state's state licensing authority or authorities, as applicable, and each of the participating states' state licensing authority or authorities, as applicable. 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. Upon the termination of a state's participation in this compact, that state must immediately provide notice to all licensees of the state, including licensees of other participating states issued a compact privilege to practice within that state, of such termination. The terminated state must continue to recognize all compact privileges then in effect in that state for a minimum of 180 days after the date of said notice of termination. The Commission must 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. 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 party must be awarded all costs of such litigation, including reasonable attorney's fees. DISPUTE RESOLUTION Upon request by a participating state, the commission must attempt to resolve disputes related to the compact that arise among participating states and between participating states and non-participating states. The commission must promulgate a rule providing for both mediation and binding dispute resolution for disputes as appropriate. The commission, in the reasonable exercise of its discretion, must enforce the provisions of this compact and the commission's rules. By majority vote, the commission may initiate legal action against a participating state in default in the United States District Court for the District of Columbia or the federal district where the commission has its principal offices to enforce compliance with the provisions of the compact and its promulgated rules. The relief sought may include both injunctive relief and damages. In the event judicial enforcement is necessary, the prevailing party must be awarded all costs of such litigation, including reasonable attorney's fees. The remedies herein must not be the exclusive remedies of the commission. The commission may pursue any other remedies available under federal or the defaulting participating state's law. A participating state may initiate legal action against the commission in the U.S. District Court for the District of Columbia or the federal district where the commission has its principal offices to enforce compliance with the provisions of the compact and its promulgated rules. The relief sought may include both injunctive relief and damages. In the event judicial enforcement is necessary, the prevailing party must be awarded all costs of such litigation, including reasonable attorney's fees. No individual or entity other than a participating state may enforce this compact against the commission. EFFECTIVE DATE, WITHDRAWAL, AND AMENDMENT This compact comes into effect on the date on which the compact statute is enacted into law in the seventh participating state. A participating state may withdraw from this compact by enacting a statute repealing that state's enactment of the compact. A participating state's withdrawal must not take effect until one 180 days after enactment of the repealing statute. Withdrawal must not affect the continuing requirement of the withdrawing state's licensing authority or authorities to comply with the investigative and adverse action reporting requirements of this compact prior to the effective date of withdrawal. Upon the enactment of a statute withdrawing from this compact, the state must immediately provide notice of such withdrawal to all licensees within that state. CONSISTENT EFFECT AND CONFLICT WITH OTHER STATE LAWS This compact does not prevent or inhibit the enforcement of any other law of a participating state that is not inconsistent with the compact. Any laws, statutes, regulations, or other legal requirements in a participating state in conflict with the compact are superseded to the extent of the conflict. All permissible agreements between the commission and the participating states are binding in accordance with their terms. The department of health, in consultation with the board of dentistry, may promulgate rules to implement and amend this part, as necessary, to ensure this state's participation in the compact. The board of dentistry must notify the reviser of statutes, the chair of the government operations committee of the house of representatives, and the chair of the government operations committee of the senate in writing when the compact is so enacted into law.

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Sponsor

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Details

Session

113th General Assembly

Introduced

January 30, 2023

Subjects

1355

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