Who is CSG? Non-partisan organization serving all three branches of state government. Collaborative, national reach combined with regional offices. Fosters the exchange of insights and ideas to help state officials shape public policy. Extensive experience providing guidance and technical assistance in the field of interstate compacts.

TECHNICAL ASSISTANCE CSG AFFILIATES REGIONAL COMPACTS & COMMISSIONS NATIONAL CENTER FOR INTERSTATE COMPACTS BORDER LEGISLATIVE CONFERENCE JUSTICE CENTER REGIONAL COMPACTS & COMMISSIONS CSG AFFILIATES The Council of State Governments | www.csg.org

What is an Interstate Compact? Simple, versatile and proven tool Effective means of cooperatively addressing common problems Contract between states Creates economies of scale Responds to national priorities with one voice Retains collective state sovereignty over issues belonging to the states

3 Primary Uses Used to resolve boundary disputes. Used to manage shared natural resources. Used to create administrative agencies which have jurisdiction over a wide variety of state concerns: State transportation Taxation Environmental matters Regulation Education Corrections Public safety Licensure

Compacts Approximately 215 active compacts About 40 are inactive On average, each state is a member of 25 compacts Precedence for international participation Port Authority of NY & NJ (1922) signaled a new era in regulatory compacts.

Interstate Compacts – Beneficial Attributes National data & information sharing systems Uniform compact language and rules Proven governance structures Permanent funding mechanism National interface with external stakeholders / national organizations Coordination with other interstate compacts and federal partners National office and staff (if necessary)

Interstate Compacts – Practical Challenges Governed by tenets of contract law Requires an offer from the first state to join and acceptance from additional states. Compact must be passed and signed into law like any bill. Requires an interstate transaction Congressional Consent – Article 1, Clause 10, Sec. 3 “No State shall, without the Consent of Congress . . . enter into any Agreement or Compact with another State . . . ” Courts have held consent isn’t required unless the compact infringes on federal supremacy. I’ve spend the last few minutes talking about some of the benefits of compacts. With that in mind I think it is important that I also spend a little time talking about the potential challenges we often see in our compact work. First, as I’ve said at different points during my remarks, we’re talking about an instrument that functions as a contract between states. In essence that means every states must adopt the same legislative language. It is hard enough to get two states to agree to something. It often becomes very difficult and time consuming to get several states to adopt the same piece of legislation. The second challenge that we also run into with compacts is the question of Congressional Consent. I actually tend to look at this question in 2 parts. First, is consent required. A literal reading of the Constitution would suggest that all compacts necessitate consent. In reality though the courts have tended to side more with the states and have concluded that so long as a proposed compact doesn’t infringe on an enumerated power of the federal government consent isn’t required. Assuming that consent is necessary the second challenge becomes when and how to seek it.

Notable Medical and Licensing Compacts Nurse Licensure Compact – 24 States Compact on Mental Health – 45 states Agreement on the Qualification of Education Personnel – 36 states Interstate Compact on Licensure of Participants in Horse Racing --13 states EMS Licensure Compact – In development Medical Licensure Compact – In development Physical Therapy Compact – In development

Medical Licensing Compact – Transition and Next Steps State legislative action, including a fiscal note Enactment threshold met – 7 states State notifications and appointment of state commissioners Convene first interstate commission meeting Establishment of the commission and supporting governance structure

Interstate Compacts – Sovereignty and Autonomy Provided for by the U.S. Constitution – Article 1, Clause 10, Section 3 Significant legal and historical precedence Over 200 active compacts, with each state belonging to 25 on average Only giving up the authority to act unilaterally Allows states to maintain collective sovereignty

Interstate Compacts – Financing Compacts typically allow for the funding of commission activities, including the following: Annual business meeting and standing committee meetings Staff support and infrastructure Legal counsel Web site and data system (if necessary) 3 Primary Options User fees to be established by the commission Grants and awards from federal agencies or private foundations State appropriations – state as the funder of “last resort

Interstate Compacts – Typical Governance Structure The Commission is comprised of voting representatives from each member state and is responsible for key decisions with respect to the compact. The Commission can form committees, including an executive committee that is responsible for making day-to-day decisions. Compact Commissions are frequently granted the authority to hire staff, which is responsible for implementing the policies and procedures established by the Commission Commissions serve agencies of the member states and are tasked with acting on their behalf and not on the behalf of particular groups or organizations.

Interstate Compacts – Role and Authority of the Commission The member states create the Interstate Medical Licensure Compact Commission, which functions as a body corporate and a joint agency of the member states. The Commission shall be comprised of two voting representatives per member state It is granted the authority to promulgate rules, pass bylaws, establish committees, hire staff, etc. Those powers are not unique. Similar authority has been granted to at least 3 other compact commissions that have expanded to 50 states.

Typical Compact Governance Structure Advisory Council Interstate Commission Executive Committee Executive Committee Executive Director Executive Director Staff Staff

Licensure Compacts – Discipline and Dispute Resolution Regulatory authority for the home state remains with that state’s Medical Licensure Board Member Boards may participate with other member boards in joint investigations of physicians licensed by the member boards Boards may share information and other materials Subpoenas issued by member states are enforceable in other member states Additionally, the Commission has the authority to promulgate rules which provide for mediation and binding dispute resolution when appropriate.

Licensure Compacts – Discipline and Dispute Resolution Which state is the home state? Did the violation occur in the home or remote state? Which state should conduct the investigation (home state, remote state, or both states?

Licensure Compacts – Due Process Investigations of alleged misconduct should probably be permitted to be jointly managed by home and remote states based upon due process considerations including access to witnesses, evidence, and timely ‘trial.’ See Morrissey v. Brewer, 408 U.S. 471 (1972

Licensure Compacts – Discipline and Due Process (CONT’) Which state should take the lead? Due process considerations include: Where the incident occurred; Access to witnesses; Access to respondents; Ability to obtain evidence; Public risk involved; Timely case processing;

Visit CSG’s National Center for Interstate Compacts online at: Contact Information Crady deGolian (859) 244-8068 cdegolian@csg.org Rick Masters (502) 262-5881 rmasters@csg.org Visit CSG’s National Center for Interstate Compacts online at: www.csg.org/ncic