AB438: Bill Text

AB438,25,6 1. The members, officers, executive director, employees, and representatives of the commission shall be immune from suit and liability, either personally or in their official capacity, for any claim for damage to or loss of property or personal injury or other civil liability caused by or arising out of any actual or alleged act, error, or omission that occurred, or that the person against whom the claim is made had a reasonable basis for believing occurred within the scope of commission employment, duties, or responsibilities; provided that nothing in this paragraph shall be construed to protect any such person from suit and/or liability for any damage, loss, injury, or liability caused by the intentional or willful or wanton misconduct of that person.

AB438,25,16 2. The commission shall defend any member, officer, executive director, employee, or representative of the commission in any civil action seeking to impose liability arising out of any actual or alleged act, error, or omission that occurred within the scope of commission employment, duties, or responsibilities, or that the person against whom the claim is made had a reasonable basis for believing occurred within the scope of commission employment, duties, or responsibilities; provided that nothing herein shall be construed to prohibit that person from retaining his or her own counsel; and provided further, that the actual or alleged act, error, or omission did not result from that person's intentional or willful or wanton misconduct.

AB438,25,24 3. The commission shall indemnify and hold harmless any member, officer, executive director, employee, or representative of the commission for the amount of any settlement or judgment obtained against that person arising out of any actual or alleged act, error, or omission that occurred within the scope of commission employment, duties, or responsibilities, or that such person had a reasonable basis for believing occurred within the scope of commission employment, duties, or responsibilities, provided that the actual or alleged act, error, or omission did not result from the intentional or willful or wanton misconduct of that person.

AB438,26,4 (8) Data system. (a) The commission shall provide for the development, maintenance, and utilization of a coordinated database and reporting system containing licensure, adverse action, and investigative information on all licensed individuals in member states.

AB438,26,8 (b) Notwithstanding any other provision of state law to the contrary, a member state shall submit a uniform data set to the data system on all individuals to whom this compact is applicable as required by the rules of the commission, including all of the following:

AB438,26,9 1. Identifying information.

AB438,26,10 2. Licensure data.

AB438,26,11 3. Adverse actions against a license or compact privilege.

AB438,26,12 4. Nonconfidential information related to alternative program participation.

AB438,26,13 5. Any denial of application for licensure, and the reason(s) for such denial.

AB438,26,15 6. Other information that may facilitate the administration of this compact, as determined by the rules of the commission.

AB438,26,17 (c) Investigative information pertaining to a licensee in any member state will only be available to other party states.

AB438,26,21 (d) The commission shall promptly notify all member states of any adverse action taken against a licensee or an individual applying for a license. Adverse action information pertaining to a licensee in any member state will be available to any other member state.

AB438,26,24 (e) Member states contributing information to the data system may designate information that may not be shared with the public without the express permission of the contributing state.

AB438,27,3 (f) Any information submitted to the data system that is subsequently required to be expunged by the laws of the member state contributing the information shall be removed from the data system.

AB438,27,7 (9) Rule making. (a) The commission shall exercise its rule-making powers pursuant to the criteria set forth in this section and the rules adopted thereunder. Rules and amendments shall become binding as of the date specified in each rule or amendment.

AB438,27,11 (b) 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 adoption of the rule, then such rule shall have no further force and effect in any member state.

AB438,27,13 (c) Rules or amendments to the rules shall be adopted at a regular or special meeting of the commission.

AB438,27,17 (d) 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 rule making at all of the following:

AB438,27,18 1. On the website of the commission or other publicly accessible platform.

AB438,27,21 2. On the website of each member state physical therapy licensing board or other publicly accessible platform or the publication in which each state would otherwise publish proposed rules.

AB438,27,22 (e) The notice of proposed rule making shall include all of the following:

AB438,27,24 1. The proposed time, date, and location of the meeting in which the rule will be considered and voted upon.

AB438,28,2 2. The text of the proposed rule or amendment and the reason for the proposed rule.

AB438,28,3 3. A request for comments on the proposed rule from any interested person.

AB438,28,6 4. The manner in which interested persons may submit notice to the commission of their intention to attend the public hearing and any written comments.

AB438,28,9 (f) 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.

AB438,28,11 (g) The commission shall grant an opportunity for a public hearing before it adopts a rule or amendment if a hearing is requested by any of the following:

AB438,28,12 1. At least 25 persons.

AB438,28,13 2. A state or federal governmental subdivision or agency.

AB438,28,14 3. An association having at least 25 members.

AB438,28,18 (h) 1. 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.

AB438,28,22 2. 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.

AB438,28,24 3. 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.

AB438,29,2 4. All hearings will be recorded. A copy of the recording will be made available on request.

AB438,29,5 5. 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.

AB438,29,8 (i) 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.

AB438,29,11 (j) 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.

AB438,29,14 (k) The commission shall, by majority vote of all members, take final action on the proposed rule and shall determine the effective date of the rule, if any, based on the rule-making record and the full text of the rule.

AB438,29,21 (L) Upon determination that an emergency exists, the commission may consider and adopt an emergency rule without prior notice, opportunity for comment, or hearing, provided that the usual rule-making procedures provided in the compact and in this section shall be retroactively applied to the rule as soon as reasonably possible, in no event later than 90 days after the effective date of the rule. For the purposes of this provision, an emergency rule is one that must be adopted immediately in order to do any of the following:

AB438,29,22 1. Meet an imminent threat to public health, safety, or welfare.

AB438,29,23 2. Prevent a loss of commission or member state funds.

AB438,29,25 3. Meet a deadline for the promulgation of an administrative rule that is established by federal law or rule.

AB438,30,1 4. Protect public health and safety.

AB438,30,11 (m) 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.

AB438,30,16 (10) Oversight, dispute resolution, and enforcement. (a) Oversight. 1. The executive, legislative, and judicial branches of state government in each member state shall enforce this compact and take all actions necessary and appropriate to effectuate the compact's purposes and intent. The provisions of this compact and the rules promulgated hereunder shall have standing as statutory law.

AB438,30,20 2. All courts shall take judicial notice of the compact and the rules in any judicial or administrative proceeding in a member state pertaining to the subject matter of this compact which may affect the powers, responsibilities, or actions of the commission.

AB438,30,24 3. The commission shall be entitled to receive service of process in any such proceeding, and shall have standing to intervene in such a proceeding for all purposes. Failure to provide service of process to the commission shall render a judgment or order void as to the commission, this compact, or promulgated rules.

AB438,31,4 (b) Default, technical assistance, and termination. 1. If the commission determines that a member state has defaulted in the performance of its obligations or responsibilities under this compact or the promulgated rules, the commission shall do all of the following:

AB438,31,7 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.

AB438,31,9 b. Provide remedial training and specific technical assistance regarding the default.

AB438,31,14 2. 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.

AB438,31,19 3. 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.

AB438,31,22 4. 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.

AB438,31,25 5. 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.

AB438,32,4 6. The defaulting state may appeal the action of the commission by petitioning the U.S. District Court for the District of Columbia or the federal district where the commission has its principal offices. The prevailing member shall be awarded all costs of such litigation, including reasonable attorney's fees.

AB438,32,7 (c) Dispute resolution. 1. Upon request by a member state, the commission shall attempt to resolve disputes related to the compact that arise among member states and between member and nonmember states.

AB438,32,9 2. The commission shall promulgate a rule providing for both mediation and binding dispute resolution for disputes as appropriate.

AB438,32,11 (d) Enforcement. 1. The commission, in the reasonable exercise of its discretion, shall enforce the provisions and rules of this compact.

AB438,32,18 2. By majority vote, the commission may initiate legal action in the U.S. District Court for the District of Columbia or the federal district where the commission has its principal offices against a 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.

AB438,32,20 3. The remedies herein shall not be the exclusive remedies of the commission. The commission may pursue any other remedies available under federal or state law.

AB438,33,3 (11) Date of implementation of the interstate commission for physical therapy practice and associated rules, withdrawal, and amendments. (a) The compact shall come into effect on the date on which the compact statute is enacted into law in the 10th member state. The provisions, which become effective at that time, shall be limited to the powers granted to the commission relating to assembly and the promulgation of rules. Thereafter, the commission shall meet and exercise rule-making powers necessary to the implementation and administration of the compact.

AB438,33,8 (b) Any state that joins the compact subsequent to the commission's initial adoption of the rules shall be subject to the rules as they exist on the date on which the compact becomes law in that state. Any rule that has been previously adopted by the commission shall have the full force and effect of law on the day the compact becomes law in that state.

AB438,33,10 (c) 1. Any member state may withdraw from this compact by enacting a statute repealing the same.

AB438,33,12 2. A member state's withdrawal shall not take effect until 6 months after enactment of the repealing statute.

AB438,33,15 3. Withdrawal shall not affect the continuing requirement of the withdrawing state's physical therapy licensing board to comply with the investigative and adverse action reporting requirements of this act prior to the effective date of withdrawal.

AB438,33,19 (d) Nothing contained in this compact shall be construed to invalidate or prevent any physical therapy licensure agreement or other cooperative arrangement between a member state and a nonmember state that does not conflict with the provisions of this compact.

AB438,33,22 (e) This compact may be amended by the member states. No amendment to this compact shall become effective and binding upon any member state until it is enacted into the laws of all member states.

AB438,34,7 (12) 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 party 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 party state, the compact shall remain in full force and effect as to the remaining party states and in full force and effect as to the party state affected as to all severable matters.

AB438,24 Section 24 . 448.986 of the statutes is created to read:

AB438,34,10 448.986 Implementation of the physical therapy licensure compact. (1) In this section:

AB438,34,11 (a) “Compact” means the physical therapy licensure compact under s. 448.985.

AB438,34,13 (b) “Compact privilege” means a compact privilege, as defined in s. 448.985 (2) (d), that is granted under the compact to an individual to practice in this state.

AB438,34,14 (c) “Examining board” means the physical therapy examining board.

AB438,34,16 (2) The department may impose a fee for an individual to receive a compact privilege as provided in s. 448.985 (3) (d).

AB438,34,20 (3) The examining board may, by rule, require an individual seeking a compact privilege to meet a jurisprudence requirement in accordance with s. 448.985 (4) (a) 7., if such a requirement is imposed by the examining board under s. 448.54 in order to obtain a license under s. 448.53 or 448.535.

AB438,34,22 (4) (a) An individual who holds a compact privilege shall comply with s. 440.03 (13) (am).

AB438,35,2 (b) Subject to s. 448.985 and any rules promulgated thereunder, ss. 440.20 to 440.22 and the rules promulgated under s. 440.03 (1) shall apply to an individual who holds a compact privilege in the same manner that they apply to holders of licenses issued under subch. III.

AB438,25 Section 25 . 450.10 (3) (a) 5. of the statutes is amended to read:

AB438,35,7 450.10 (3) (a) 5. A physician, physician assistant, podiatrist, physical therapist, physical therapist assistant, occupational therapist, or occupational therapy assistant licensed under ch. 448 or a physical therapist or physical therapist assistant who holds a compact privilege under subch. IX of ch. 448.

AB438,26 Section 26 . 451.02 (1) of the statutes is amended to read:

AB438,35,12 451.02 (1) An individual holding a license, permit or certificate under ch. 441, 446, 447, 448, or 449 or a compact privilege under subch. IX of ch. 448 who engages in a practice of acupuncture that is also included within the scope of his or her license, permit or certificate.

AB438,27 Section 27 . 462.04 of the statutes is amended to read:

AB438,35,22 462.04 Prescription or order required. A person who holds a license or limited X-ray machine operator permit under this chapter may not use diagnostic X-ray equipment on humans for diagnostic purposes unless authorized to do so by prescription or order of a physician licensed under s. 448.04 (1) (a), a dentist licensed under s. 447.04 (1), a podiatrist licensed under s. 448.63, a chiropractor licensed under s. 446.02, an advanced practice nurse certified under s. 441.16 (2), a physician assistant licensed under s. 448.04 (1) (f), or, subject to s. 448.56 (7) (a), a physical therapist who is licensed under s. 448.53 or who holds a compact privilege under subch. IX of ch. 448.

AB438,28 Section 28 . Nonstatutory provisions.

AB438,36,7 (1) The physical therapy examining board and the department of safety and professional services may promulgate emergency rules under s. 227.24 necessary to implement this act. Notwithstanding s. 227.24 (1) (c) and (2), emergency rules promulgated under this subsection remain in effect until May 1, 2021, or the date on which permanent rules take effect, whichever is sooner. Notwithstanding s. 227.24 (1) (a) and (3), neither the board nor the department is required to provide evidence that promulgating a rule under this subsection as an emergency rule is necessary for the preservation of the public peace, health, safety, or welfare or provide a finding of emergency for a rule promulgated under this subsection.

AB438,29 Section 29 . Effective dates. This act takes effect on the day after publication, except as follows:

AB438,36,13 (1) The repeal and recreation of ss. 440.03 (13) (b) (intro.) and 440.15 takes effect on December 16, 2019, or on the day after publication, whichever occurs later, except that if either 2019 Assembly Bill 70 or 2019 Senate Bill 74 is enacted into law, the repeal and recreation of ss. 440.03 (13) (b) (intro.) and 440.15 is void.

AB438,36,14 (End)