SB 397 - AS AMENDED BY THE SENATE

02/03/2022 0343s

02/03/2022 0449s

2022 SESSION

22-3080

07/11

SENATE BILL 397

AN ACT relative to the mental health counseling compact and the interstate compact for the placement of children.

SPONSORS: Sen. Kahn, Dist 10; Sen. Carson, Dist 14; Sen. Whitley, Dist 15; Sen. Watters, Dist 4; Sen. Sherman, Dist 24; Sen. Perkins Kwoka, Dist 21; Sen. Bradley, Dist 3; Sen. Prentiss, Dist 5; Rep. P. Schmidt, Straf. 19; Rep. Marsh, Carr. 8

COMMITTEE: Executive Departments and Administration

-----------------------------------------------------------------

AMENDED ANALYSIS

This bill adopts the mental health counseling compact as well as the 2009 edition of the interstate compact for the placement of children.

- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -

Explanation: Matter added to current law appears in bold italics.

Matter removed from current law appears [in brackets and struckthrough.]

Matter which is either (a) all new or (b) repealed and reenacted appears in regular type.

02/03/2022 0343s

02/03/2022 0449s 22-3080

07/11

STATE OF NEW HAMPSHIRE

In the Year of Our Lord Two Thousand Twenty Two

AN ACT relative to the mental health counseling compact and the interstate compact for the placement of children.

Be it Enacted by the Senate and House of Representatives in General Court convened:

1 Purpose.

I. The purpose of the mental health counseling compact is to facilitate the 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.

II. 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 states' abilities to protect the health and safety of the public;

(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) Establish within all member states 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 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.

2 New Chapter; Mental Health Counseling Compact. Amend RSA by inserting after chapter 330-C the following new chapter:

CHAPTER 330-D

MENTAL HEALTH COUNSELING COMPACT

330-D:1 Definitions. As used in this compact, and except as otherwise provided, the following definitions shall apply:

I. "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.

II. "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 license 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.

III. "Alternative program" means a non-disciplinary monitoring practice remediation process approved by a professional counseling licensing board to address impaired practitioners.

IV. "Continuing competence/education" means a requirement, as a condition of license renewal, to provide evidence of participation in, and/or completion of, educational and professional activities relevant to practice or area of work.

V. "Counseling compact commission" or "commission" means the national administrative body whose membership consists of all states that have enacted the compact.

VI. "Current significant investigative information" means:

(a) Investigative information that a licensing board, after a preliminary inquiry that includes notification and an opportunity for the licensed professional counselor to respond, if required by state law, has reason to believe is not groundless and, if proved true, would indicate more than a minor infraction; or

(b) Investigative information that indicates that the licensed professional counselor represents an immediate threat to public health and safety regardless of whether the licensed professional counselor has been notified and had an opportunity to respond.

VII. "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.

VIII. "Encumbrance" means a revocation or suspension of, or any limitation on, the full and unrestricted practice of licensed professional counseling by a licensing board.

IX. "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).

X. "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.

XI. "Home state" means the member state that is the licensee's primary state of residence.

XII. "Impaired practitioner" means an individual who has a condition or conditions that may impair their ability to practice as a licensed professional counselor without some type of intervention and may include, but are not limited to, alcohol and drug dependence, mental health impairment, and neurological or physical impairments.

XIII. "Investigative information" means information, records, and documents received or generated by a professional counseling licensing board pursuant to an investigation.

XIV. "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.

XV. "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.

XVI. "Licensee" means an individual who currently holds an authorization from the state to practice as a licensed professional counselor.

XVII. "Licensing board" means the agency of a state, or equivalent, that is responsible for licensing and regulation of licensed professional counselors.

XVIII. "Member state" means a state that has enacted the mental health counseling compact.

XIX. "Privilege to practice" means a legal authorization, which is equivalent to a license, permitting the practice of professional counseling in a remote state.

XX. "Professional counseling" means the assessment, diagnosis, and treatment of behavioral health conditions by a licensed professional counselor.

XXI. "Remote state" means a member state other than the home state where a licensee is exercising or seeking to exercise the privilege to practice.

XXII. "Rule" means a regulation promulgated by the commission that has the force of law.

XXIII. "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.

XXIV. "State" means any state, commonwealth, district, or territory of the United States of America that regulates the practice of professional counseling.

XXV. "Telehealth" means the application of telecommunication technology to deliver professional counseling services remotely to assess diagnose, and treat behavioral health conditions.

XXVI. "Unencumbered license" means a license that authorizes a licensed professional counselor to engage in the full and unrestricted practice of professional counseling.

330-D:2 State Participation in the Compact.

I. To participate in the compact, a state must currently:

(a) License and regulate licensed professional counselors;

(b) Require licensees to pass a nationally recognized exam approved by the commission;

(c) Require licensees to have a 60 semester-hour or 90 quarter-hour master's degree in counseling or 60 semester hours or 90 quarter-hours of graduate course work including the following topic areas:

(1) Professional counseling orientation and ethical practice;

(2) Social and cultural diversity;

(3) Human growth and development:

(4) Career development;

(5) Counseling and helping relationships;

(6) Group counseling and group work;

(7) Diagnosis and treatment; assessment and testing;

(8) Research and program evaluation; and

(9) Other areas as determined by the commission.

(d) Require licensees to complete a supervised postgraduate professional experience as defined by the commission; and

(e) Have a mechanism in place for receiving and investigating complaints about licensees.

II. A member state shall:

(a) Participate fully in the commission's data system, including using the commission's unique identifier as defined in rules;

(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 utilize procedures for considering the criminal history records of applicants for an initial privilege to practice. These procedures shall:

(1) 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;

(2) Be fully implemented within a time frame established by rule, by receiving the results of the Federal Bureau of Investigation record search and using such results in licensure decisions; and

(3) Ensure that communication between a member state and the commission and among member states does not include any information received from the Federal Bureau of Investigation relating to a federal criminal records check performed by a member state under Public Law 92-544;

(d) Comply with the rules 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 renewal of licensure, as well as all other applicable state laws;

(f) Grant the privilege to practice to a licensee holding a valid, unencumbered license in another member state in accordance with the terms of the compact and rules; and

(g) Provide for the attendance of the state's commissioner to the counseling compact commission meetings.

IV. Member states may charge a fee for granting the privilege to practice.

V. 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 those individuals shall not be recognized as granting a privilege to practice professional counseling in any other member state.

VI. Nothing in this compact shall affect the requirements established by a member state for the issuance of a single state license.

VII. 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.

330-D:3 Privilege to Practice.

I. To exercise the privilege to practice under the terms and provisions of the compact, the licensee shall:

(a) Hold a license in the home state;

(b) Have a valid United States social security number or national practitioner identifier;

(c) Be eligible for a privilege to practice in any member state in accordance with paragraphs IV, VII, and VIII of this section;

(d) Have not had any encumbrance or restriction against any license or privilege to practice within the previous 2 years;

(e) Notify the commission that the licensee is seeking the privilege to practice within a remote state(s);

(f) Pay any applicable fees, including any state fee, for the privilege to practice;

(g) Meet any continuing competence or education requirements established by the home state;

(h) Meet any jurisprudence requirements established by the remote state(s) in which the licensee is seeking a privilege to practice; and

(i) 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.

II. The privilege to practice is valid until the expiration date of the home state license. The licensee must comply with the requirements of paragraph I of this section to maintain the privilege to practice in the remote state.

III. 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.

IV. 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, and/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.

V. If a home state license is encumbered, the licensee shall lose the privilege to practice in any remote state until 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 2 years.

VI. Once an encumbered license in the home state is restored to good standing, the licensee must meet the requirements of paragraph I of this section to obtain a privilege to practice in any remote state.

VII. 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:

(a) The specific period of time for which the privilege to practice was removed has ended;

(b) All fines have been paid; and

(c) The licensee has not had any encumbrance or restriction against any license or privilege to practice within the previous 2 years.

VIII. Once the requirements of paragraph VII of this section have been met, the licensee must meet the requirements of paragraph I of this section to obtain a privilege to practice in a remote state.

330-D:4 Obtaining a New Home State License Based On a Privilege to Practice.

I. 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.

II. If a licensed professional counselor changes their primary state of residence by moving between 2 member states:

(a) 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;

(b) 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 RSA 330-D:3 via the data system, without need for primary source verification except:

(1) 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 Federal Public Law 92-544;

(2) Other criminal background check(s) as required by the new home state; and

(3) Completion of any requisite jurisprudence requirements of the new home state;

(c) 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;

(d) Notwithstanding any other provision of this compact, if the licensed professional counselor cannot meet the criteria of RSA 330-D:3, the new home state may apply its requirements for issuing a new single state license; and

(e) The licensed professional counselor shall pay all applicable fees to the new home state in order to be issued a new home state license.

III. 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.

IV. 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.

V. Nothing in this compact shall affect the requirements established by a member state for the issuance of a single state license.

330-D:5 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 RSA 330-D:4.

330-D:6 Compact Privilege to Practice Telehealth.

I. Member states shall recognize the right of a licensed professional counselor, licensed by a home state in accordance with RSA 330-D:2 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.

II. 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.

330-D:7 Adverse Actions.

I. Only the home state shall have the power to take adverse action against a licensed professional counselor's license issued by the home state.

II. 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:

(a) Take adverse action against a licensed professional counselor's privilege to practice 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. 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 are located.

III. For purposes of taking adverse action, the home state shall give the same priority and effect to reported conduct 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.

IV. 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 coordinator licensure information system shall promptly notify the new home state of any adverse actions.

V. 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.

VI. 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.

VII. Joint investigations shall be conducted as follows:

(a) In addition to the authority granted to a member state by its respective professional counseling practice act or other applicable state law, any member state may participate with other member states in joint investigations of licensees.

(b) Member states shall share any investigative, litigation, or compliance materials in furtherance of any joint or individual investigation initiated under the compact.

VIII. 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.

IX. 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.

X. 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.

330-D:8 Establishment of the Counseling Compact Commission.

I. The compact member states hereby create and establish a joint public agency known as the counseling compact commission:

(a) The commission is an instrumentality of the compact states.

(b) The 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.

II. The membership, voting procedures, and meetings of the commission shall be as follows:

(a) Each member state shall have and be limited to 1 delegate selected by that member state's licensing board.

(b) The delegate shall be either:

(1) A current member of the licensing board at the time of the appointment, who is a licensed professional counselor or public member, or

(2) An administrator of the licensing board.

(c) Any delegate may be removed or suspended from office as provided by the law of the state from which the delegate is appointed.

(d) The member state licensing board shall fill any vacancy occurring on the commission within 60 days.

(e) Each delegate shall be entitled to 1 vote with regard to the promulgation of rules and creation of bylaws and shall otherwise have an opportunity to participate in the business affairs of the commission.

(f) A delegate shall vote in person or by such other means as provided in the bylaws. The bylaws may provide for delegates' participation in meetings by telephone or other means of communication.

(g) The commission shall meet at least once during each calendar year. Additional meetings shall be held as set forth in the bylaws.

(h) The commission shall, by rule, establish a term of office for delegates and may, by rule, establish term limits.

III. The commission shall have the following powers and duties:

(a) Establish the fiscal year of the commission;

(b) Establish bylaws;

(d) Meet and take such actions as are consistent with the provisions of this compact and the bylaws;

(e) Promulgate rules which shall be binding to the extent and in the manner provided for in the compact;

(f) 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;

(g) Purchase and maintain insurance and bonds;

(h) Borrow, accept, or contract for services of personnel, including, but not limited to, employees of a member state;

(i) Hire employees, 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;

(j) 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 and/or conflicts of interest;

(k) 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;

(l) Sell, convey, mortgage, pledge, lease, exchange, abandon, or otherwise dispose of any property, real, personal, or mixed;

(m) Establish a budget and make expenditures;

(n) Borrow money;

(o) Appoint committees, including standing committees 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;

(p) Provide and receive information from, and cooperate with, law enforcement agencies;

(q) Establish and elect an executive committee; and

(r) 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.

IV. The executive committee shall:

(a) Have the power to act on behalf of the commission according to the terms of this compact;

(b) Be composed of up to 11 members:

(1) Seven voting members who are elected by the commission from the current membership of the commission; and

(2) Up to 4 ex-officio, non-voting members from 4 recognized national professional counselor organizations to be selected by their respective organizations;

(d) Meet at least annually; and

(e) Have the following duties and responsibilities:

(1) Recommend to the entire commission changes to the rules or bylaws, changes to this compact legislation, fees paid by the compact member states such as annual dues, and any commission compact fee charged to licensees for the privilege to practice;

(2) Ensure compact administration services are appropriately provided, contractual or otherwise;

(3) Prepare and recommend the budget;

(4) Maintain financial records on behalf of the commission;

(5) Monitor compact compliance of member states and provide compliance reports to the commission;

(6) Establish additional committees as necessary; and

(7) Other duties as provided in rules or the bylaws.

V. All meetings of the commission shall be open to the public, and public notice of meetings shall be given in the same manner as required under the rulemaking provisions of RSA 330-D:10. The commission, executive committee, or other committee of the commission may convene a closed, non-public meeting if they must discuss:

(a) Non-compliance of 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;

(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, 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.

VI. 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.

VII. The commission shall keep minutes that fully and clearly describe all matters discussed in a meeting, 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.

VIII. In relation to the commission's finances, the commission:

(a) Shall pay, or provide for the payment of, the reasonable expenses of its establishment, organization, and ongoing activities.

(b) May accept any and all appropriate revenue sources, donations, and grants of money, equipment, supplies, materials, and services.

(c) May levy on and collect an annual assessment from each member state or impose fees on other parties to cover the cost of 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.

(d) 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.

(e) 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.

IX. The commission's policies related to qualified immunity, defenses, and indemnification are as follows:

(a) 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 the commission employment, duties, or responsibilities provided that nothing in this paragraph shall be construed to protect any such person from suit and/or liability for any damage, loss, injury, or liability caused by the intentional, willful, or wanton misconduct of that person.

(b) The commission shall defend any member, officer, executive director, employee, or representative of the commission in any civil action seeking to impose liability arising out of any actual or alleged act, error, or omission that occurred within the scope of the 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, willful, or wanton misconduct.

(c) The commission shall indemnify and hold harmless any member, officer, executive director, employee, or representative of the commission for the amount of any settlement or judgment obtained against that person arising out of any actual or alleged act, error, or omission that occurred 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, willful, or wanton misconduct of that person.

330-D:9 Data System.

I. 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.

II. 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:

(a) Identifying information;

(b) Licensure data;

(d) Non-confidential information related to alternative program participation;

(e) Any denial of application for licensure and the reason(s) for such denial;

(f) Current significant investigative information; and

(g) Other information that may facilitate the administration of this compact, as determined by the rules of the commission.

III. Investigative information pertaining to a licensee in any member state will only be available to other member states.

IV. 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.

V. 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.

VI. 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.

330-D:10 Rulemaking.

I. 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.

II. The commission shall exercise its rulemaking 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.

III. If a majority of the legislatures of the member states rejects a rule, by enactment of a statute or resolution in the same manner used to adopt the compact within 4 years of the date of the adoption of the rule, then such rule shall have no further force and effect in any member state.

IV. Rules or amendments to the rules shall be adopted at a regular or special meeting of the commission.

V. Prior to promulgation and adoption of a final rule or rules by the commission, and at least 30 days in advance of the meeting at which the rule will be considered and voted upon, the commission shall file a notice of proposed rulemaking:

(a) On the website of the commission or other publicly accessible platform; and

(b) On the website of each member state professional counseling licensing board or other publicly accessible platform or the publication in which each state would otherwise publish proposed rules.

VI. The notice of proposed rulemaking shall include:

(a) The proposed time, date, and location of the meeting in which the rule will be considered and voted upon;

(b) The text of the proposed rule or amendment and the reason for the proposed rule;

(d) The manner in which interested persons may submit notice to the commission of their intention to attend the public hearing and any written comments.

VII. 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.

VIII. The commission shall grant an opportunity for a public hearing before it adopts a rule or amendment if a hearing is requested by:

(a) At least 25 persons;

(b) A state or federal government subdivision or agency; or

IX. 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. Hearings shall also be conducted as follows:

(a) 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 5 business days before the scheduled date of the hearing;

(b) 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;

(d) 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.

X. 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.

XI. 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.

XII. 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 rulemaking record and the full text of the rule.

XIII. Upon determination that an emergency exists, the commission may consider and adopt an emergency rule without prior notice, opportunity for comment, or hearing, provided that the usual rulemaking procedures provided in the compact and in this section shall 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. For purposes of this paragraph, an emergency rule is one that must be adopted immediately in order to:

(a) Meet an imminent threat to public health, safety, or welfare.

(b) Prevent a loss of commission or member state funds;

(d) Protect public health and safety.

XIV. 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 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 chair 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.

330-D:11 Oversight, Dispute Resolution, and Enforcement.

I. Oversight of the commission and this compact shall be as follows:

(a) 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 shall have standing as statutory law.

(b) All courts shall take judicial notice of the compact and the rules in any judicial or administrative proceeding in a member state pertaining to the subject matter of this compact, RSA 330-D, which may affect the powers, responsibilities, or actions of the commission.

(c) 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.

II. 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/or any other action to be taken by the commission; and

(b) Provide remedial training and specific technical assistance regarding the default.

III. 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.

IV. 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.

V. 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.

VI. 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.

VII. The defaulting state may appeal the action of the commission by petitioning the United States District Court for the District of Columbia or the federal district where the commission has its principal offices. The prevailing member shall be awarded all costs of such litigation, including reasonable attorney's fees.

VIII. In regards to dispute resolution, the commission shall:

(a) Upon request of by a member state, attempt to resolve disputes related to the compact that arise among member states and between member and non-member states; and

(b) Promulgate a rule providing for both mediation and binding dispute resolution for disputes as appropriate.

IX. The commission, in the reasonable exercise of its discretion, shall enforce the provisions and rules of this compact.

X. 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.

XI. The remedies herein shall not be the exclusive remedies of the commission. The commission may pursue any other remedies available under federal and state law.

330-D:12 Date of Implementation of the Counseling Compact Commission and Associated Rules, Withdrawal, and Amendment.

I. 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 related 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.

II. 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.

III. Any member state may withdraw from this compact by enacting a statute repealing the same, a member state's withdrawal shall not:

(a) Take effect until 6 months after enactment of the repealing statute; and

(b) 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 act prior to the effective date of withdrawal.

IV. 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.

V. 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.

330-D:13 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.

330-D:14 Binding Effect of Compact and Other Laws.

I. 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.

II. Nothing herein prevents the enforcement of any other law of a member state that is not inconsistent with the compact.

III. Any laws in a member state in conflict with the compact are superseded to the extent of the conflict.

IV. Any lawful actions of the commission, including all rules and bylaws properly promulgated by the commission, are binding upon the member states.

V. All permissible agreements between the commission and the member states are binding in accordance with their terms.

VI. 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.

3 Interstate Compact for the Placement of Children. RSA 170-A is repealed and reenacted to read as follows:

CHAPTER 170-A

INTERSTATE COMPACT

FOR THE PLACEMENT OF CHILDREN

170-A:1 Interstate Compact for the Placement of Children. On the effective date of this chapter, based upon the enactment of the Interstate Compact for the Placement of Children into law by the thirty-fifth compacting state, the governor is authorized and directed to execute a compact on behalf of this state with any other state or states legally joining therein in the form substantially as follows:

ARTICLE I

Purpose

The purpose of this Interstate Compact for the Placement of Children is to:

I. Provide a process through which children subject to this compact are placed in safe and suitable homes in a timely manner.

II. Facilitate ongoing supervision of a placement, the delivery of services, and communication between the states.

III. Provide operating procedures that will ensure that children are placed in safe and suitable homes in a timely manner.

IV. Provide for the promulgation and enforcement of administrative rules implementing the provisions of this compact and regulating the covered activities of the member states.

V. Provide for uniform data collection and information sharing between member states under this compact.

VI. Promote coordination between this compact, the Interstate Compact for Juveniles, the Interstate Compact on Adoption and Medical Assistance, and other compacts affecting the placement of and which provide services to children otherwise subject to this compact.

VII. Provide for a state’s continuing legal jurisdiction and responsibility for placement and care of a child that it would have had if the placement were intrastate.

VIII. Provide for the promulgation of guidelines, in collaboration with Indian tribes, for interstate cases involving Indian children as is or may be permitted by federal law.

ARTICLE II

Definitions

As used in this compact:

I. “Approved placement” means the public child-placing agency in the receiving state has determined that the placement is both safe and suitable for the child.

II. “Assessment” means an evaluation of a prospective placement by a public child-placing agency in the receiving state to determine if the placement meets the individualized needs of the child, including, but not limited to, the child’s safety and stability, health and well-being, and mental, emotional, and physical development. An assessment is only applicable to a placement by a public child-placing agency.

III. “Child” means an individual who has not attained the age of 18.

IV. “Certification” means to attest, declare, or swear to before a judge or notary public.

V. “Default” means the failure of a member state to perform the obligations or responsibilities imposed upon it by this compact or the bylaws or rules of the Interstate Commission.

VI. “Home study” means an evaluation of a home environment conducted in accordance with the applicable requirements of the state in which the home is located and that documents the preparation and the suitability of the placement resource for placement of a child in accordance with the laws and requirements of the state in which the home is located.

VII. “Indian tribe” means any Indian tribe, band, nation, or other organized group or community of Indians recognized as eligible for services provided to Indians by the Secretary of the Interior because of their status as Indians, including any Alaskan native village as defined in section 3(c) of the Alaska Native Claims Settlement Act, 43 U.S.C. section 1602(c).

VIII. “Interstate Commission for the Placement of Children” means the commission that is created under Article VIII of this compact and which is generally referred to as the “Interstate Commission.”

IX. “Jurisdiction” means the power and authority of a court to hear and decide matters.

X. “Legal risk placement” or “legal risk adoption” means a placement made preliminary to an adoption where the prospective adoptive parents acknowledge in writing that a child can be ordered returned to the sending state or the birth mother’s state of residence, if different from the sending state, and a final decree of adoption shall not be entered in any jurisdiction until all required consents are obtained or are dispensed with in accordance with applicable law.

XI. “Member state” means a state that has enacted this compact.

XII. “Noncustodial parent” means a person who, at the time of the commencement of court proceedings in the sending state, does not have sole legal custody of the child or has joint legal custody of a child, and who is not the subject of allegations or findings of child abuse or neglect.

XIII. “Nonmember state” means a state which has not enacted this compact.

XIV. “Notice of residential placement” means information regarding a placement into a residential facility provided to the receiving state, including, but not limited to, the name, date, and place of birth of the child, the identity and address of the parent or legal guardian, evidence of authority to make the placement, and the name and address of the facility in which the child will be placed. Notice of residential placement shall also include information regarding a discharge and any unauthorized absence from the facility.

XV. “Placement” means the act by a public or private child-placing agency intended to arrange for the care or custody of a child in another state.

XVI. “Private child-placing agency” means any private corporation, agency, foundation, institution, or charitable organization, or any private person or attorney, that facilitates, causes, or is involved in the placement of a child from one state to another and that is not an instrumentality of the state or acting under color of state law.

XVII. “Provisional placement” means a determination made by the public child-placing agency in the receiving state that the proposed placement is safe and suitable, and, to the extent allowable, the receiving state has temporarily waived its standards or requirements otherwise applicable to prospective foster or adoptive parents so as to not delay the placement. Completion of the receiving state requirements regarding training for prospective foster or adoptive parents shall not delay an otherwise safe and suitable placement.

XVIII. “Public child-placing agency” means any government child welfare agency or child protection agency or a private entity under contract with such an agency, regardless of whether the entity acts on behalf of a state, a county, a municipality, or another governmental unit, and which facilitates, causes, or is involved in the placement of a child from one state to another.

XIX. “Receiving state” means the state to which a child is sent, brought, or caused to be sent or brought.

XX. “Relative” means someone who is related to the child as a parent, stepparent, sibling by half or whole blood or by adoption, grandparent, aunt, uncle, or first cousin or a nonrelative with such significant ties to the child that the nonrelative may be regarded as a relative as determined by the court in the sending state.

XXI. “Residential facility” means a facility providing a level of care that is sufficient to substitute for parental responsibility or foster care and that is beyond what is needed for assessment or treatment of an acute condition. For purposes of the compact, the term “residential facility” does not include institutions primarily educational in character, hospitals, or other medical facilities.

XXII. “Rule” means a written directive, mandate, standard, or principle issued by the Interstate Commission promulgated pursuant to Article XI of this compact that is of general applicability and that implements, interprets, or prescribes a policy or provision of the compact. A rule has the force and effect of an administrative rule in a member state and includes the amendment, repeal, or suspension of an existing rule.

XXIII. “Sending state” means the state from which the placement of a child is initiated.

XXIV. “Service member’s permanent duty station” means the military installation where an active duty United States Armed Services member is currently assigned and is physically located under competent orders that do not specify the duty as temporary.

XXV. “Service member’s state of legal residence” means the state in which the active duty United States Armed Services member is considered a resident for tax and voting purposes.

XXVI. “State” means a state of the United States, the District of Columbia, the Commonwealth of Puerto Rico, the United States Virgin Islands, Guam, American Samoa, the Northern Mariana Islands, and any other territory of the United States.

XXVII. “State court” means a judicial body of a state that is vested by law with responsibility for adjudicating cases involving abuse, neglect, deprivation, delinquency, or status offenses of individuals who have not attained the age of 18.

XXVIII. “Supervision” means monitoring provided by the receiving state once a child has been placed in a receiving state pursuant to this compact.

ARTICLE III

Applicability

I. Except as otherwise provided in paragraph II, this compact shall apply to:

(a) The interstate placement of a child subject to ongoing court jurisdiction in the sending state, due to allegations or findings that the child has been abused, neglected, or deprived as defined by the laws of the sending state; provided, however, that the placement of such a child into a residential facility shall only require notice of residential placement to the receiving state prior to placement.

(b) The interstate placement of a child adjudicated delinquent or unmanageable based on the laws of the sending state and subject to ongoing court jurisdiction of the sending state if:

(1) The child is being placed in a residential facility in another member state and is not covered under another compact; or

(2) The child is being placed in another member state and the determination of safety and suitability of the placement and services required is not provided through another compact.

(c) The interstate placement of any child by a public child-placing agency or private child-placing agency as a preliminary step to a possible adoption.

II. The provisions of this compact shall not apply to:

(a) The interstate placement of a child in a custody proceeding in which a public child-placing agency is not a party; provided, however, that the placement is not intended to effectuate an adoption.

(b) The interstate placement of a child with a nonrelative in a receiving state by a parent with the legal authority to make such a placement; provided, however, that the placement is not intended to effectuate an adoption.

(c) The interstate placement of a child by one relative with the lawful authority to make such a placement directly with a relative in a receiving state.

(d) The placement of a child, not subject to paragraph I, into a residential facility by his or her parent.

(e) The placement of a child with a noncustodial parent, provided that:

(1) The noncustodial parent proves to the satisfaction of a court in the sending state a substantial relationship with the child;

(2) The court in the sending state makes a written finding that placement with the noncustodial parent is in the best interests of the child; and

(3) The court in the sending state dismisses its jurisdiction in interstate placements in which the public child-placing agency is a party to the proceeding.

(f) A child entering the United States from a foreign country for the purpose of adoption or leaving the United States to go to a foreign country for the purpose of adoption in that country.

(g) Cases in which a child who is a United States citizen living overseas with his or her family, at least one of whom is in the United States Armed Services and stationed overseas, is removed and placed in a state.

(h) The sending of a child by a public child-placing agency or a private child-placing agency for a visit as defined by the rules of the Interstate Commission.

III. For purposes of determining the applicability of this compact to the placement of a child with a family member in the United States Armed Services, the public child-placing agency or private child-placing agency may choose the state of the service member’s permanent duty station or the service member’s declared legal residence.

IV. Nothing in this compact shall be construed to prohibit the concurrent application of the provisions of this compact with other applicable interstate compacts, including the Interstate Compact for Juveniles and the Interstate Compact on Adoption and Medical Assistance. The Interstate Commission may, in cooperation with other interstate compact commissions having responsibility for the interstate movement, placement, or transfer of children, promulgate similar rules to ensure the coordination of services, timely placement of children, and reduction of unnecessary or duplicative administrative or procedural requirements.

ARTICLE IV

Jurisdiction

I. Except as provided in Article IV, paragraph VIII, and Article V, subparagraph II(b) and (c), concerning private and independent adoptions, and in interstate placements in which the public child-placing agency is not a party to a custody proceeding, the sending state shall retain jurisdiction over a child with respect to all matters of custody and disposition of the child which it would have had if the child had remained in the sending state. Such jurisdiction shall also include the power to order the return of the child to the sending state.

II. When an issue of child protection or custody is brought before a court in the receiving state, such court shall confer with the court of the sending state to determine the most appropriate forum for adjudication.

III. In cases that are before courts and subject to this compact, the taking of testimony for hearings before any judicial officer may occur in person or by telephone, audio-video conference, or such other means as approved by the rules of the Interstate Commission, and judicial officers may communicate with other judicial officers and persons involved in the interstate process as may be permitted by their code of judicial conduct and any rules promulgated by the Interstate Commission.

IV. In accordance with its own laws, the court in the sending state shall have authority to terminate its jurisdiction if:

(a) The child is reunified with the parent in the receiving state who is the subject of allegations or findings of abuse or neglect, only with the concurrence of the public child-placing agency in the receiving state;

(b) The child is adopted;

(d) The child achieves legal independence pursuant to the laws of the sending state;

(e) A guardianship is created by a court in the receiving state with the concurrence of the court in the sending state;

(f) An Indian tribe has petitioned for and received jurisdiction from the court in the sending state; or

(g) The public child-placing agency of the sending state requests termination and has obtained the concurrence of the public child-placing agency in the receiving state.

V. When a sending state court terminates its jurisdiction, the receiving state child-placing agency shall be notified.

VI. Nothing in this article shall defeat a claim of jurisdiction by a receiving state court sufficient to deal with an act of truancy, delinquency, crime, or behavior involving a child as defined by the laws of the receiving state committed by the child in the receiving state which would be a violation of its laws.

VII. Nothing in this article shall limit the receiving state’s ability to take emergency jurisdiction for the protection of the child.

VIII. The substantive laws of the state in which an adoption will be finalized shall solely govern all issues relating to the adoption of the child, and the court in which the adoption proceeding is filed shall have subject matter jurisdiction regarding all substantive issues relating to the adoption, except:

(a) When the child is a ward of another court that established jurisdiction over the child prior to the placement;

(b) When the child is in the legal custody of a public agency in the sending state; or

(c) When a court in the sending state has otherwise appropriately assumed jurisdiction over the child prior to the submission of the request for approval of placement.

IX. A final decree of adoption shall not be entered in any jurisdiction until the placement is authorized as an “approved placement” by the public child-placing agency in the receiving state.

ARTICLE V

Placement Evaluation

I. Prior to sending, bringing, or causing a child to be sent or brought into a receiving state, the public child-placing agency shall provide a written request for assessment to the receiving state.

II. For placements by a private child-placing agency, a child may be sent or brought, or caused to be sent or brought, into a receiving state upon receipt and immediate review of the required content in a request for approval of a placement in both the sending and receiving state public child-placing agencies. The required content to accompany a request for approval shall include all of the following:

(a) A request for approval identifying the child, the birth parents, the prospective adoptive parents, and the supervising agency, signed by the person requesting approval.

(b) The appropriate consents or relinquishments signed by the birth parents in accordance with the laws of the sending state or, where permitted, the laws of the state where the adoption will be finalized.

(c) Certification by a licensed attorney or authorized agent of a private adoption agency that the consent or relinquishment is in compliance with the applicable laws of the sending state or, where permitted, the laws of the state where finalization of the adoption will occur.

(d) A home study.

(e) An acknowledgment of legal risk signed by the prospective adoptive parents.

III. The sending state and the receiving state may request additional information or documents prior to finalization of an approved placement, but they may not delay travel by the prospective adoptive parents with the child if the required content for approval has been submitted, received, and reviewed by the public child-placing agency in both the sending state and the receiving state.

IV. Approval from the public child-placing agency in the receiving state for a provisional or approved placement is required as provided for in the rules of the Interstate Commission.

V. The procedures for making the request for an assessment shall contain all information and be in such form as provided for in the rules of the Interstate Commission.

VI. Upon receipt of a request from the public child-placing agency of the sending state, the receiving state shall initiate an assessment of the proposed placement to determine its safety and suitability. If the proposed placement is a placement with a relative, the public child-placing agency of the sending state may request a determination for a provisional placement.

VII. The public child-placing agency in the receiving state may request from the public child-placing agency or the private child-placing agency in the sending state, and shall be entitled to receive, supporting or additional information necessary to complete the assessment or approve the placement.

VIII. The public child-placing agency in the receiving state shall approve a provisional placement and complete or arrange for the completion of the assessment within the timeframes established by the rules of the Interstate Commission.

IX. For a placement by a private child-placing agency, the sending state shall not impose any additional requirements to complete the home study that are not required by the receiving state, unless the adoption is finalized in the sending state.

X. The Interstate Commission may develop uniform standards for the assessment of the safety and suitability of interstate placements.

ARTICLE VI

Placement Authority

I. Except as otherwise provided in this compact, no child subject to this compact shall be placed in a receiving state until approval for such placement is obtained.

II. If the public child-placing agency in the receiving state does not approve the proposed placement, then the child shall not be placed. The receiving state shall provide written documentation of any such determination in accordance with the rules promulgated by the Interstate Commission. Such determination is not subject to judicial review in the sending state.

III. If the proposed placement is not approved, any interested party shall have standing to seek an administrative review of the receiving state’s determination.

(a) The administrative review and any further judicial review associated with the determination shall be conducted in the receiving state pursuant to its applicable administrative procedures act.

(b) If a determination not to approve the placement of the child in the receiving state is overturned upon review, the placement shall be deemed approved; provided, however, that all administrative or judicial remedies have been exhausted or the time for such remedies has passed.

ARTICLE VII

Placing Agency Responsibility

I. For the interstate placement of a child made by a public child-placing agency or state court:

(a) The public child-placing agency in the sending state shall have financial responsibility for:

(1) The ongoing support and maintenance for the child during the period of the placement, unless otherwise provided for in the receiving state; and

(2) As determined by the public child-placing agency in the sending state, services for the child beyond the public services for which the child is eligible in the receiving state.

(b) The receiving state shall only have financial responsibility for:

(1) Any assessment conducted by the receiving state; and

(2) Supervision conducted by the receiving state at the level necessary to support the placement as agreed upon by the public child-placing agencies of the receiving and sending states.

(c) Nothing in this section shall prohibit public child-placing agencies in the sending state from entering into agreements with licensed agencies or persons in the receiving state to conduct assessments and provide supervision.

II. For the placement of a child by a private child-placing agency preliminary to a possible adoption, the private child-placing agency shall be:

(a) Legally responsible for the child during the period of placement as provided for in the law of the sending state until the finalization of the adoption.

(b) Financially responsible for the child absent a contractual agreement to the contrary.

III. The public child-placing agency in the receiving state shall provide timely assessments, as provided for in the rules of the Interstate Commission.

IV. The public child-placing agency in the receiving state shall provide, or arrange for the provision of, supervision and services for the child, including timely reports, during the period of the placement.

V. Nothing in this compact shall be construed to limit the authority of the public child-placing agency in the receiving state from contracting with a licensed agency or person in the receiving state for an assessment or the provision of supervision or services for the child or otherwise authorizing the provision of supervision or services by a licensed agency during the period of placement.

VI. Each member state shall provide for coordination among its branches of government concerning the state’s participation in and compliance with the compact and Interstate Commission activities through the creation of an advisory council or use of an existing body or board.

VII. Each member state shall establish a central state compact office which shall be responsible for state compliance with the compact and the rules of the Interstate Commission.

VIII. The public child-placing agency in the sending state shall oversee compliance with the provisions of the Indian Child Welfare Act, 25 U.S.C. section 1901 et seq., for placements subject to the provisions of this compact, prior to placement.

IX. With the consent of the Interstate Commission, states may enter into limited agreements that facilitate the timely assessment and provision of services and supervision of placements under this compact.

ARTICLE VIII

Interstate Commission for the Placement of Children

The member states hereby establish, by way of this compact, a commission known as the “Interstate Commission for the Placement of Children.” The activities of the Interstate Commission are the formation of public policy and are a discretionary state function. The Interstate Commission shall:

I. Be a joint commission of the member states and shall have the responsibilities, powers, and duties set forth herein and such additional powers as may be conferred upon it by subsequent concurrent action of the respective legislatures of the member states.

II. Consist of one commissioner from each member state who shall be appointed by the executive head of the state human services administration with ultimate responsibility for the child welfare program. The appointed commissioner shall have the legal authority to vote on policy-related matters governed by this compact binding the state.

(a) Each member state represented at a meeting of the Interstate Commission is entitled to one vote.

(b) A majority of the member states shall constitute a quorum for the transaction of business, unless a larger quorum is required by the bylaws of the Interstate Commission.

(d) A representative may delegate voting authority to another person from that state for a specified meeting.

III. Include, in addition to the commissioners of each member state, persons who are members of interested organizations as defined in the bylaws or rules of the Interstate Commission. Such members shall be ex officio and shall not be entitled to vote on any matter before the Interstate Commission.

IV. Establish an executive committee which shall have the authority to administer the day-to-day operations and administration of the Interstate Commission. The executive committee shall not have the power to engage in rulemaking.

ARTICLE IX

Powers and Duties of the Interstate Commission

The Interstate Commission shall have the following powers:

I. To promulgate rules and take all necessary actions to effect the goals, purposes, and obligations as enumerated in this compact.

II. To provide for dispute resolution among member states.

III. To issue, upon request of a member state, advisory opinions concerning the meaning or interpretation of the interstate compact, its bylaws, rules, or actions.

IV. To enforce compliance with this compact or the bylaws or rules of the Interstate Commission pursuant to Article XII.

V. Collect standardized data concerning the interstate placement of children subject to this compact as directed through its rules, which shall specify the data to be collected, the means of collection and data exchange, and reporting requirements.

VI. To establish and maintain offices as may be necessary for the transacting of its business.

VII. To purchase and maintain insurance and bonds.

VIII. To hire or contract for services of personnel or consultants as necessary to carry out its functions under the compact and establish personnel qualification policies and rates of compensation.

IX. To establish and appoint committees and officers, including, but not limited to, an executive committee as required by Article X.

X. To accept any and all donations and grants of money, equipment, supplies, materials, and services, and to receive, utilize, and dispose thereof.

XI. To lease, purchase, accept contributions or donations of, or otherwise to own, hold, improve, or use any property, real, personal, or mixed.

XII. To sell, convey, mortgage, pledge, lease, exchange, abandon, or otherwise dispose of any property, real, personal, or mixed.

XIII. To establish a budget and make expenditures.

XIV. To adopt a seal and bylaws governing the management and operation of the Interstate Commission.

XV. To report annually to the legislatures, the governors, the judiciary, and the state advisory councils of the member states concerning the activities of the Interstate Commission during the preceding year. Such reports shall also include any recommendations that may have been adopted by the Interstate Commission.

XVI. To coordinate and provide education, training, and public awareness regarding the interstate movement of children for officials involved in such activity.

XVII. To maintain books and records in accordance with the bylaws of the Interstate Commission.

XVIII. To perform such functions as may be necessary or appropriate to achieve the purposes of this compact.

ARTICLE X

Organization and Operation of the Interstate Commission

I. Organization.

(a) Within 12 months after the first Interstate Commission meeting, the Interstate Commission shall adopt rules to govern its conduct as may be necessary or appropriate to carry out the purposes of the compact.

(b) The Interstate Commission’s rules shall establish conditions and procedures under which the Interstate Commission shall make its information and official records available to the public for inspection or copying.

II. Meetings.

(a) The Interstate Commission shall meet at least once each calendar year. The chairperson may call additional meetings and, upon the request of a simple majority of the member states, shall call additional meetings.

(b) Public notice shall be given by the Interstate Commission of all meetings, and all meetings shall be open to the public.

(c) The bylaws may provide for meetings of the Interstate Commission to be conducted by telecommunication or other electronic communication.

III. Officers and staff.

(a) The Interstate Commission may, through its executive committee, appoint or retain a staff director for such period, upon such terms and conditions, and for such compensation as the Interstate Commission may deem appropriate. The staff director shall serve as secretary to the Interstate Commission but shall not have a vote. The staff director may hire and supervise such other staff as may be authorized by the Interstate Commission.

(b) The Interstate Commission shall elect, from among its members, a chairperson and a vice chairperson of the executive committee, and other necessary officers, each of whom shall have such authority and duties as may be specified in the bylaws.

IV. Qualified immunity, defense, and indemnification.

(a) The Interstate Commission’s staff director and its employees shall be immune from suit and liability, either personally or in their official capacity, for a claim for damage to or loss of property or personal injury or other civil liability caused or arising out of or relating to an actual or alleged act, error, or omission that occurred or that such person had a reasonable basis for believing occurred within the scope of Interstate Commission employment, duties, or responsibilities; provided, however, that such person shall not be protected from suit or liability for damage, loss, injury, or liability caused by a criminal act or the intentional or willful and wanton misconduct of such person.

(b)(1) The liability of the Interstate Commission’s staff director and employees or Interstate Commission representatives, acting within the scope of such person’s employment or duties, for acts, errors, or omissions occurring within such person’s state may not exceed the limits of liability set forth under the Constitution and laws of that state for state officials, employees, and agents. The Interstate Commission is considered to be an instrumentality of the states for the purposes of any such action. Nothing in this subsection shall be construed to protect such person from suit or liability for damage, loss, injury, or liability caused by a criminal act or the intentional or willful and wanton misconduct of such person.

(2) The Interstate Commission shall defend the staff director and its employees and, subject to the approval of the attorney general or other appropriate legal counsel of the member state, shall defend the commissioner of a member state in a civil action seeking to impose liability arising out of an actual or alleged act, error, or omission that occurred within the scope of Interstate Commission employment, duties, or responsibilities, or that the defendant had a reasonable basis for believing occurred within the scope of Interstate Commission employment, duties, or responsibilities; provided, however, that the actual or alleged act, error, or omission did not result from intentional or willful and wanton misconduct on the part of such person.

(3) To the extent not covered by the state involved, a member state, or the Interstate Commission, the representatives or employees of the Interstate Commission shall be held harmless in the amount of a settlement or judgment, including attorney’s fees and costs, obtained against such persons arising out of an actual or alleged act, error, or omission that occurred within the scope of Interstate Commission employment, duties, or responsibilities, or that such persons had a reasonable basis for believing occurred within the scope of Interstate Commission employment, duties, or responsibilities; provided, however, that the actual or alleged act, error, or omission did not result from intentional or willful and wanton misconduct on the part of such persons.

ARTICLE XI

Rulemaking Functions of the Interstate Commission

I. The Interstate Commission shall promulgate and publish rules in order to effectively and efficiently achieve the purposes of the compact.

II. Rulemaking shall occur pursuant to the criteria set forth in this article and the bylaws and rules adopted pursuant thereto. Such rulemaking shall substantially conform to the principles of the “Model State Administrative Procedures Act,” 1981 Act, Uniform Laws Annotated, Vol. 15, p. 1 (2000), or such other administrative procedure acts as the Interstate Commission deems appropriate, consistent with due process requirements under the United States Constitution as now or hereafter interpreted by the United States Supreme Court. All rules and amendments shall become binding as of the date specified, as published with the final version of the rule as approved by the Interstate Commission.

III. When promulgating a rule, the Interstate Commission shall, at a minimum:

(a) Publish the proposed rule’s entire text stating the reasons for that proposed rule;

(b) Allow and invite any and all persons to submit written data, facts, opinions, and arguments, which information shall be added to the record and made publicly available; and

(c) Promulgate a final rule and its effective date, if appropriate, based on input from state or local officials or interested parties.

IV. Rules promulgated by the Interstate Commission shall have the force and effect of administrative rules and shall be binding in the compacting states to the extent and in the manner provided for in this compact.

V. Not later than 60 days after a rule is promulgated, an interested person may file a petition in the United States District Court for the District of Columbia or in the federal district court where the Interstate Commission’s principal office is located for judicial review of such rule. If the court finds that the Interstate Commission’s action is not supported by substantial evidence in the rulemaking record, the court shall hold the rule unlawful and set it aside.

VI. If a majority of the legislatures of the member states rejects a rule, those states may by enactment of a statute or resolution in the same manner used to adopt the compact cause that such rule shall have no further force and effect in any member state.

VII. The existing rules governing the operation of the Interstate Compact on the Placement of Children superseded by this act shall be null and void no less than 12 months but no more than 24 months after the first meeting of the Interstate Commission created hereunder, as determined by the members during the first meeting.

VIII. Within the first 12 months of operation, the Interstate Commission shall promulgate rules addressing the following:

(a) Transition rules.

(b) Forms and procedures.

(d) Data collection and reporting.

(e) Rulemaking.

(f) Visitation.

(g) Progress reports and supervision.

(h) Sharing of information and confidentiality.

(i) Financing of the Interstate Commission.

(j) Mediation, arbitration, and dispute resolution.

(k) Education, training, and technical assistance.

(l) Enforcement.

(m) Coordination with other interstate compacts.

IX. Upon determination by a majority of the members of the Interstate Commission that an emergency exists:

(a) The Interstate Commission may promulgate an emergency rule only if it is required to:

(1) Protect the children covered by this compact from an imminent threat to their health, safety, and well-being;

(2) Prevent loss of federal or state funds; or

(3) Meet a deadline for the promulgation of an administrative rule required by federal law.

(b) An emergency rule shall become effective immediately upon adoption, provided that the usual rulemaking procedures provided hereunder shall be retroactively applied to the emergency rule as soon as reasonably possible, but no later than 90 days after the effective date of the emergency rule.

ARTICLE XII

Oversight, Dispute Resolution, and Enforcement

I. Oversight.

(a) The Interstate Commission shall oversee the administration and operation of the compact.

(b) The executive, legislative, and judicial branches of state government in each member state shall enforce this compact and the rules of the Interstate Commission and shall take all actions necessary and appropriate to effectuate the compact’s purposes and intent. The compact and its rules shall be binding in the compacting states to the extent and in the manner provided for in this compact.

(c) 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.

(d) The Interstate Commission shall be entitled to receive service of process in any action in which the validity of a compact provision or rule is the issue for which a judicial determination has been sought and shall have standing to intervene in any proceedings. Failure to provide service of process to the Interstate Commission shall render any judgment, order, or other determination, however so captioned or classified, void as to this compact, its bylaws, or rules of the Interstate Commission.

II. Dispute resolution.

(a) The Interstate Commission shall attempt, upon the request of a member state, to resolve disputes which are subject to the compact and which may arise among member states and between member and nonmember states.

(b) The Interstate Commission shall promulgate a rule providing for both mediation and binding dispute resolution for disputes among compacting states. The costs of such mediation or dispute resolution shall be the responsibility of the parties to the dispute.

III. Enforcement. If the Interstate Commission determines that a member state has defaulted in the performance of its obligations or responsibilities under this compact, its bylaws, or rules of the Interstate Commission, the Interstate Commission may:

(a) Provide remedial training and specific technical assistance;

(b) Provide written notice to the defaulting state and other member states of the nature of the default and the means of curing the default. The Interstate Commission shall specify the conditions by which the defaulting state must cure its default;

(c) By majority vote of the members, initiate against a defaulting member state legal action in the United States District Court for the District of Columbia or, at the discretion of the Interstate Commission, in the federal district where the Interstate Commission has its principal office, to enforce compliance with the provisions of the compact, its bylaws, or rules of the Interstate Commission. The relief sought may include both injunctive relief and damages. In the event judicial enforcement is necessary, the prevailing party shall be awarded all costs of such litigation including reasonable attorney’s fees; or

(d) Avail itself of any other remedies available under state law or the regulation of official or professional conduct.

ARTICLE XIII

Financing of the Commission

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

II. The Interstate Commission may levy on and collect an annual assessment from each member state to cover the cost of the operations and activities of the Interstate Commission and its staff, which must be in a total amount sufficient to cover the Interstate Commission’s annual budget as approved by its members each year. The aggregate annual assessment amount shall be allocated based upon a formula to be determined by the Interstate Commission, which shall promulgate a rule binding upon all member states.

III. The Interstate Commission shall not incur obligations of any kind prior to securing the funds adequate to meet those obligations, nor shall the Interstate Commission pledge the credit of any of the member states, except by and with the authority of the member state.

IV. The Interstate Commission shall keep accurate accounts of all receipts and disbursements. The receipts and disbursements of the Interstate Commission shall be subject to the audit and accounting procedures established under its bylaws. However, all receipts and disbursements of funds handled by the Interstate 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 Interstate Commission.

ARTICLE XIV

Member States, Effective Date, and Amendment

I. Any state is eligible to become a member state.

II. The compact shall become effective and binding upon legislative enactment of the compact into law by no less than 35 states. The effective date shall be the later of July 1, 2007, or upon enactment of the compact into law by the thirty-fifth state. Thereafter, it shall become effective and binding as to any other member state upon enactment of the compact into law by that state. The executive heads of the state human services administration with ultimate responsibility for the child welfare program of nonmember states or their designees shall be invited to participate in the activities of the Interstate Commission on a nonvoting basis prior to adoption of the compact by all states.

III. The Interstate Commission may propose amendments to the compact for enactment by the member states. No amendment shall become effective and binding on the member states unless and until it is enacted into law by unanimous consent of the member states.

ARTICLE XV

Withdrawal and Dissolution

I. Withdrawal.

(a) Once effective, the compact shall continue in force and remain binding upon each and every member state, provided that a member state may withdraw from the compact by specifically repealing the statute which enacted the compact into law.

(b) Withdrawal from this compact shall be by the enactment of a statute repealing the compact. The effective date of withdrawal shall be the effective date of the repeal of the statute.

(c) The withdrawing state shall immediately notify the president of the Interstate Commission in writing upon the introduction of legislation repealing this compact in the withdrawing state. The Interstate Commission shall then notify the other member states of the withdrawing state’s intent to withdraw.

(d) The withdrawing state is responsible for all assessments, obligations, and liabilities incurred through the effective date of withdrawal.

(e) Reinstatement following withdrawal of a member state shall occur upon the withdrawing state reenacting the compact or upon such later date as determined by the members of the Interstate Commission.

II. Dissolution of compact.

(a) This compact shall dissolve effective upon the date of the withdrawal or default of the member state which reduces the membership in the compact to one member state.

(b) Upon the dissolution of this compact, the compact becomes null and void and shall be of no further force or effect, and the business and affairs of the Interstate Commission shall be concluded and surplus funds shall be distributed in accordance with the bylaws.

ARTICLE XVI

Severability and Construction

I. The provisions of this compact shall be severable, and, if any phrase, clause, sentence, or provision is deemed unenforceable, the remaining provisions of the compact shall be enforceable.

II. The provisions of this compact shall be liberally construed to effectuate its purposes.

III. Nothing in this compact shall be construed to prohibit the concurrent applicability of other interstate compacts to which the states are members.

ARTICLE XVII

Binding Effect of Compact and Other Laws

I. Other laws. Nothing in this compact prevents the enforcement of any other law of a member state that is not inconsistent with this compact.

II. Binding effect of the compact.

(a) All lawful actions of the Interstate Commission are binding upon the member states.

(b) All agreements between the Interstate Commission and the member states are binding in accordance with their terms.

(c) In the event any provision of this compact exceeds the constitutional limits imposed on the legislature or executive branch of any member state, such provision shall be ineffective to the extent of the conflict with the constitutional provision in question in that member state.

ARTICLE XVIII

Indian Tribes

Notwithstanding any other provision in this compact, the Interstate Commission may promulgate guidelines to permit Indian tribes to utilize the compact to achieve any or all of the purposes of the compact as specified in Article I. The Interstate Commission shall make reasonable efforts to consult with Indian tribes in promulgating guidelines to reflect the diverse circumstances of the various Indian tribes.

4 Adoption; Reference Changed. Amend RSA 170-B:18, IV to read as follows:

IV. The department or a licensed child-placing agency making the required assessment may request other departments or licensed child-placing agencies within or outside this state to make the assessment or designated portions thereof as may be appropriate. Where such written assessments are made, a written report shall be filed with the court; provided, however, said report shall not violate RSA 170-A, the interstate compact [on] for the placement of children.

5 Contingency. Sections 3 and 4 of this act, relative to the 2009 edition of the Interstate Compact for the Placement of Children, shall take effect on the date that the commissioner of the department of health and human services certifies to the director of the office of legislative services and the secretary of state that 35 compacting states, including New Hampshire, have enacted the 2009 edition of the Interstate Compact for the Placement of Children.

6 Effective Date.

I. Sections 3 and 4 of this act shall take effect as provided in section 5 of this act.

II. The remainder of this act shall take effect 60 days after its passage.