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218A.390 Prescription Monitoring Program Compact.
The Prescription Monitoring Program compact is hereby enacted into law and
entered into with all other jurisdictions legally joining therein in the form substantially
as follows:
ARTICLE I
PURPOSE
The purpose of this interstate compact is to provide a mechanism for state
prescription monitoring programs to securely share prescription data to improve
public health and safety. This interstate compact is intended to:
A. Enhance the ability of state prescription monitoring programs, in accordance
with state laws, to provide an efficient and comprehensive tool for:
1.
Practitioners to monitor patients and support treatment decisions;
2.
Law enforcement to conduct diversion investigations where authorized by
state law;
3.
Regulatory agencies to conduct investigations or other appropriate
reviews where authorized by state law; and
4.
Other uses of prescription drug data authorized by state law for purposes
of curtailing drug abuse and diversion; and
B. Provide a technology infrastructure to facilitate secure data transmission.
ARTICLE II
DEFINITIONS
As used in this compact, unless the context clearly requires a different construction:
A. "Authentication" means the process of verifying the identity and credentials of a
person before authorizing access to prescription data;
B. "Authorize" means the process by which a person is granted access privileges
to prescription data;
C. "Bylaws" means those bylaws established by the interstate commission
pursuant to Article VIII for its governance, or for directing or controlling its
actions and conduct;
D. "Commissioner" means the voting representative appointed by each member
state pursuant to Article VI of this compact;
E. "Interstate commission" or "commission" means the interstate commission
created pursuant to Article VI of this compact;
F. "Member state" means any state that has adopted a prescription monitoring
program and has enacted the enabling compact legislation;
G. "Practitioner" means a person licensed, registered or otherwise permitted to
prescribe or dispense a prescription drug;
H. "Prescription data" means data transmitted by a prescription monitoring
program that contains patient, prescriber, dispenser, and prescription drug
information;
I.
"Prescription drug" means any drug required to be reported to a state
prescription monitoring program and which includes but is not limited to
substances listed in the federal Controlled Substances Act;
J.
"Prescription Monitoring Program" means a program that collects, manages,
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analyzes, and provides prescription data under the auspices of a state;
"Requestor" means a person authorized by a member state who has initiated a
request for prescription data;
"Rule" means a written statement by the interstate commission promulgated
pursuant to Article VII of this compact that is of general applicability,
implements, interprets or prescribes a policy or provision of the compact, or an
organizational, procedural, or practice requirement of the commission, and has
the force and effect of statutory law in a member state, and includes the
amendment, repeal, or suspension of an existing rule;
"State" means any state, commonwealth, district, or territory of the United
States;
"Technology infrastructure" means the design, deployment, and use of both
individual technology based components and the systems of such components
to facilitate the transmission of information and prescription data among
member states; and
"Transmission" means the release, transfer, provision, or disclosure of
information or prescription data among member states.
ARTICLE III
AUTHORIZED USES AND RESTRICTIONS ON THE PRESCRIPTION DATA
Under the Prescription Monitoring Program compact a member state:
1.
Retains its authority and autonomy over its prescription monitoring
program and prescription data in accordance with its laws, regulations
and policies;
2.
May provide, restrict or deny prescription data to a requestor of another
state in accordance with its laws, regulations and policies;
3.
May provide, restrict or deny prescription data received from another
state to a requestor within that state; and
4.
Has the authority to determine which requestors shall be authorized.
Prescription data obtained by a member state pursuant to this compact shall
have the following restrictions:
1.
Be used solely for purposes of providing the prescription data to a
requestor; and
2.
Not be stored in the states prescription monitoring program database,
except for stored images, nor in any other database.
A state may limit the categories of requestors of another member state that will
receive prescription data.
The commission shall promulgate rules establishing standards for requestor
authentication.
1.
Every member state shall authenticate requestors according to the rules
established by the commission.
2.
A member state may authorize its requestors to request prescription data
from another member state only after such requestor has been
authenticated.
3.
A member state that becomes aware of a requestor who violated the laws
or regulations governing the appropriate use of prescription data shall
notify the state that transmitted the prescription data.
ARTICLE IV
TECHNOLOGY AND SECURITY
A. The commission shall establish security requirements through rules for the
transmission of prescription data.
B. The commission shall foster the adoption of open (vendor- and
technology-neutral) standards for the technology infrastructure.
C. The commission shall be responsible for acquisition and operation of the
technology infrastructure.
ARTICLE V
FUNDING
A. The commission, through its member states, shall be responsible to provide for
the payment of the reasonable expenses for establishing, organizing and
administering the operations and activities of the interstate compact.
B. The interstate commission may levy on and collect annual dues from each
member state to cover the cost of operations and activities of the interstate
commission and its staff which must be in a total amount sufficient to cover the
interstate commissions annual budget as approved each year. The aggregate
annual dues amount shall be allocated in an equitable manner and may consist
of a fixed fee component as well as a variable fee component based upon a
formula to be determined by the interstate commission, which shall promulgate
a rule binding upon all member states. Such a formula shall take into account
factors including, but not limited to the total number of practitioners or licensees
within a member state. Fees established by the commission may be
recalculated and assessed on an annual basis.
C. Notwithstanding the above or any other provision of law, the interstate
commission may accept non-state funding, including grants, awards and
contributions to offset, in whole or in part, the costs of the annual dues required
under Article V, Section B.
D. The interstate commission shall not incur obligations of any kind prior to
securing the funds adequate to meet the same; nor shall the interstate
commission pledge the credit of any of the member states, except by and with
the authority of the member states.
E. The interstate commission shall keep accurate accounts of all receipts and
disbursements subject to the audit and accounting procedures established
under its bylaws. All receipts and disbursements of funds handled by the
interstate commission shall be audited annually 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 VI
INTERSTATE COMMISSION
The member states hereby create the Interstate Prescription Monitoring Program
Commission. The Prescription Monitoring Program compact shall be governed by an
interstate commission comprised of the member states and not by a third-party
group or federal agency. The activities of the commission are the formation of public
policy and are a discretionary state function.
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The commission shall be a body corporate and joint agency of the member
states and shall have all the responsibilities, powers and duties set forth herein,
and such additional powers as may be conferred upon it by a subsequent
concurrent action of the respective legislatures of the member states in
accordance with the terms of this compact.
The commission shall consist of one (1) voting representative from each
member state who shall be that states appointed compact commissioner and
who is empowered to determine statewide policy related to matters governed
by this compact. The compact commissioner shall be a policymaker within the
agency that houses the states Prescription Monitoring Program.
In addition to the state commissioner, the state shall appoint a non-voting
advisor who shall be a representative of the state Prescription Monitoring
Program.
In addition to the voting representatives and non-voting advisor of each
member state, the commission may include persons who are not voting
representatives, but who are members of interested organizations as
determined by the commission.
Each member state represented at a meeting of the commission is entitled to
one vote. 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
commission. A representative shall not delegate a vote to another member
state. In the event the compact commissioner is unable to attend a meeting of
the commission, the appropriate appointing authority may delegate voting
authority to another person from their state for a specified meeting. The bylaws
may provide for meetings of the commission to be conducted by electronic
communication.
The 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
compacting states, shall call additional meetings.
The commission shall establish an executive committee, which shall include
officers, members, and others as determined by the bylaws. The executive
committee shall have the power to act on behalf of the commission, with the
exception of rulemaking. During periods when the commission is not in session
the executive committee shall oversee the administration of the compact,
including enforcement and compliance with the provisions of the compact, its
bylaws and rules, and other such duties as deemed necessary.
The commission shall maintain a robust committee structure for governance
(i.e., policy, compliance, education, technology, etc.) and shall include specific
opportunities for stakeholder input.
The commissions bylaws and rules shall establish conditions and procedures
under which the commission shall make its information and official records
available to the public for inspection or copying. The commission may exempt
from disclosure information or official records that would adversely affect
personal privacy rights or proprietary interests.
The commission shall provide public notice of all meetings and all meetings
shall be open to the public, except as set forth in the rules or as otherwise
provided in the compact. The commission may close a meeting, or portion
thereof, where it determines by a two-thirds (2/3) vote of the members present
that an open meeting would be likely to:
1.
Relate solely to the commissions internal personnel practices and
procedures;
2.
Discuss matters specifically exempted from disclosure by federal and
state statute;
3.
Discuss trade secrets or commercial or financial information which is
privileged or confidential;
4.
Involve accusing a person of a crime, or formally censuring a person;
5.
Discuss information of a personal nature where disclosure would
constitute a clearly unwarranted invasion of personal privacy;
6.
Discuss investigative records compiled for law enforcement purposes; or
7.
Specifically relate to the commissions participation in a civil action or
other legal proceeding.
K. For a meeting, or portion of a meeting, closed pursuant to this provision, the
commissions legal counsel or designee shall certify that the meeting may be
closed and shall reference each relevant exemptive provision. The commission
shall keep minutes which shall fully and clearly describe all matters discussed
in a meeting and shall provide a full and accurate summary of actions taken,
and the reasons therefore, including a description of the views expressed and
the record of a roll call vote. 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.
ARTICLE VII
POWERS AND DUTIES OF THE INTERSTATE COMMISSION
The commission shall have the following powers and duties:
A. To oversee and maintain the administration of the technology infrastructure;
B. To promulgate rules and take all necessary actions to effect the goals,
purposes and obligations as enumerated in this compact, provided that no
member state shall be required to create an advisory committee. The rules
shall have the force and effect of statutory law and shall be binding in the
member states to the extent and in the manner provided in this compact;
C. To establish a process for member states to notify the commission of changes
to a states prescription monitoring program statutes, regulations, or policies.
This applies only to changes that would affect the administration of the
compact;
D. To issue, upon request of a member state, advisory opinions concerning the
meaning or interpretation of the interstate compact, its bylaws, rules and
actions;
E. To enforce compliance with the compact provisions, the rules promulgated by
the interstate commission, and the bylaws, using all necessary and proper
means, including but not limited to the use of judicial process;
F. To establish and maintain one (1) or more offices;
G. To purchase and maintain insurance and bonds;
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To borrow, accept, hire or contract for personnel or services;
To establish and appoint committees including, but not limited to, an executive
committee as required by Article VI, Section G, which shall have the power to
act on behalf of the interstate commission in carrying out its powers and duties
hereunder;
To elect or appoint such officers, attorneys, employees, agents, or consultants,
and to fix their compensation, define their duties and determine their
qualifications; and to establish the interstate commissions personnel policies
and programs relating to conflicts of interest, rates of compensation, and
qualifications of personnel;
To seek and accept donations and grants of money, equipment, supplies,
materials, and services, and to utilize or dispose of them;
To lease, purchase, accept contributions or donations of, or otherwise to own,
hold, improve or use any property, real, personal, or mixed;
To sell, convey, mortgage, pledge, lease, exchange, abandon, or otherwise
dispose of any property, real, personal or mixed;
To establish a budget and make expenditures;
To adopt a seal and bylaws governing the management and operation of the
interstate commission;
To report annually to the legislatures, Governors and Attorneys General 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 and shall be made publically
available;
To coordinate education, training and public awareness regarding the compact,
its implementation and operation;
To maintain books and records in accordance with the bylaws;
To perform such functions as may be necessary or appropriate to achieve the
purposes of this compact; and
To provide for dispute resolution among member states.
ARTICLE VIII
ORGANIZATION AND OPERATION OF THE INTERSTATE COMMISSION
The interstate commission shall, by a majority of the members present and
voting, within twelve (12) months after the first interstate commission meeting,
adopt bylaws to govern its conduct as may be necessary or appropriate to
carry out the purposes of the compact, including but not limited to:
1.
Establishing the fiscal year of the interstate commission;
2.
Establishing an executive committee, and such other committees as may
be necessary for governing any general or specific delegation of authority
or function of the interstate commission;
3.
Providing procedures for calling and conducting meetings of the interstate
commission, and ensuring reasonable notice of each such meeting;
4.
Establishing the titles and responsibilities of the officers and staff of the
interstate commission; and
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Providing a mechanism for concluding the operations of the interstate
commission and the return of surplus funds that may exist upon the
termination of the compact after the payment and reserving of all of its
debts and obligations.
The interstate commission shall, by a majority of the members present, elect
annually from among its members a chairperson, a vice-chairperson, and a
treasurer, each of whom shall have such authority and duties as may be
specified in the bylaws. The chairperson or, in the chairpersons absence or
disability, the vice-chairperson, shall preside at all meetings of the interstate
commission. The officers so elected shall serve without compensation or
remuneration from the interstate commission; provided that, subject to the
availability of budgeted funds, the officers shall be reimbursed for ordinary and
necessary costs and expenses incurred by them in the performance of their
responsibilities as officers of the interstate commission.
Executive Committee, Officers and Staff
1.
The executive committee shall have such authority and duties as may be
set forth in the bylaws, including but not limited to:
a.
Managing the affairs of the interstate commission in a manner
consistent with the bylaws and purposes of the interstate
commission;
b.
Overseeing an organizational structure within, and appropriate
procedures for the interstate commission to provide for the
administration of the compact; and
c.
Planning, implementing, and coordinating communications and
activities with other state, federal and local government
organizations in order to advance the purpose of the interstate
commission.
2.
The executive committee may, subject to the approval of the interstate
commission, appoint or retain an executive director for such period, upon
such terms and conditions and for such compensation, as the interstate
commission may deem appropriate. The executive director shall serve as
secretary to the interstate commission, but shall not be a member of the
interstate commission. The executive director shall hire and supervise
such other persons as may be authorized by the interstate commission.
The interstate commissions executive 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, that such person shall not be protected
from suit or liability for damage, loss, injury, or liability caused by the intentional
or willful and wanton misconduct of such person.
1.
The liability of the interstate commissions executive 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 persons state may not exceed the limits
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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 the intentional
or willful and wanton misconduct of such person.
2.
The interstate commission shall defend the executive director, its
employees, and subject to the approval of the Attorney General or other
appropriate legal counsel of the member state represented by an
interstate commission representative, shall defend such interstate
commission representative in any 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 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, 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 attorneys 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 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 IX
RULEMAKING FUNCTIONS OF THE INTERSTATE COMMISSION
Rulemaking Authority - The interstate commission shall promulgate reasonable
rules in order to effectively and efficiently achieve the purposes of this
compact. Notwithstanding the foregoing, in the event the interstate commission
exercises its rulemaking authority in a manner that is beyond the scope of the
purposes of this compact, or the powers granted hereunder, then such an
action by the interstate commission shall be invalid and have no force or effect.
Any rules promulgated by the commission shall not override the states
authority to govern prescription drugs or each states Prescription Monitoring
Program.
Rulemaking Procedure - Rules shall be made pursuant to a rulemaking
process that substantially conforms to the "Model State Administrative
Procedure Act," of 1981 Act, Uniform Laws Annotated, Vol. 15, p.1 (2000) as
amended, as may be appropriate to the operations of the interstate
commission.
Not later than thirty (30) days after a rule is promulgated, any person may file a
petition for judicial review of the rule; provided, that the filing of such a petition
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shall not stay or otherwise prevent the rule from becoming effective unless the
court finds that the petitioner has a substantial likelihood of success. The court
shall give deference to the actions of the interstate commission consistent with
applicable law and shall not find the rule to be unlawful if the rule represents a
reasonable exercise of the interstate commission's authority.
ARTICLE X
OVERSIGHT, ENFORCEMENT, AND DISPUTE RESOLUTION
Oversight
1.
The executive, legislative and judicial branches of state government in
each member state shall enforce this compact and shall take all actions
necessary and appropriate to effectuate the compacts purposes and
intent. The provisions of this compact and the rules promulgated
hereunder shall have standing as statutory law but, shall not override the
states authority to govern prescription drugs or the states Prescription
Monitoring Program.
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 interstate commission.
3.
The interstate commission shall be entitled to receive all service of
process in any such proceeding, and shall have standing to intervene in
the proceeding for all purposes. Failure to provide service of process to
the interstate commission shall render a judgment or order void as to the
interstate commission, this compact or promulgated rules.
Default, Technical Assistance, Suspension and Termination - If the interstate
commission determines that a member state has defaulted in the performance
of its obligations or responsibilities under this compact, or the bylaws or
promulgated rules, the interstate commission shall:
1.
Provide written notice to the defaulting state and other member states, of
the nature of the default, the means of curing the default and any action
taken by the interstate commission. The interstate commission shall
specify the conditions by which the defaulting state must cure its default.
2.
Provide remedial training and specific technical assistance regarding the
default.
3.
If the defaulting state fails to cure the default, the defaulting state shall 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 shall be terminated from 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 the default.
4.
Suspension or 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
interstate commission to the Governor, the majority and minority leaders
of the defaulting state's legislature, and each of the member states.
5.
The state which has been suspended or terminated is responsible for all
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dues, obligations and liabilities incurred through the effective date of
suspension or termination including obligations, the performance of which
extends beyond the effective date of suspension or termination.
6.
The interstate commission shall not bear any costs relating to any state
that has been found to be in default or which has been suspended or
terminated from the compact, unless otherwise mutually agreed upon in
writing between the interstate commission and the defaulting state.
7.
The defaulting state may appeal the action of the interstate commission
by petitioning the United States District Court for the District of Columbia
or the federal district where the interstate commission has its principal
offices. The prevailing party shall be awarded all costs of such litigation
including reasonable attorneys fees.
Dispute Resolution
1.
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.
2.
The interstate commission shall promulgate a rule providing for both
mediation and binding dispute resolution as appropriate.
Enforcement
1.
The interstate commission, in the reasonable exercise of its discretion,
shall enforce the provisions and rules of this compact.
2.
The interstate commission, may by majority vote of the members, initiate
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 offices, to enforce
compliance with the provisions of the compact, its promulgated rules and
bylaws, against a member state in default. 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 attorneys fees.
3.
The remedies herein shall not be the exclusive remedies of the interstate
commission. The interstate commission may avail itself of any other
remedies available under state law or the regulation of a profession.
ARTICLE XI
MEMBER STATES, EFFECTIVE DATE AND AMENDMENT
Any state that has enacted Prescription Monitoring Program legislation through
statute or regulation is eligible to become a member state of this compact.
The compact shall become effective and binding upon legislative enactment of
the compact into law by no less than six (6) of the states. Thereafter it shall
become effective and binding on a state upon enactment of the compact into
law by that state. The Governors of non-member states or their designees shall
be invited to participate in the activities of the interstate commission on a
non-voting basis prior to adoption of the compact by all states.
The interstate commission may propose amendments to the compact for
enactment by the member states. No amendment shall become effective and
binding upon the interstate commission and the member states unless and until
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it is enacted into law by unanimous consent of the member states.
ARTICLE XII
WITHDRAWAL AND DISSOLUTION
Withdrawal
1.
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.
2.
Withdrawal from this compact shall be by the enactment of a statute
repealing the same, but shall not take effect until one (1) year after the
effective date of such statute and until written notice of the withdrawal has
been given by the withdrawing state to the Governor of each other
member state.
3.
The withdrawing state shall immediately notify the chairperson of the
interstate commission in writing upon the introduction of legislation
repealing this compact in the withdrawing state. The interstate
commission shall notify the other member states of the withdrawing
states intent to withdraw within sixty (60) days of its receipt thereof.
4.
The withdrawing state is responsible for all dues, obligations and liabilities
incurred through the effective date of withdrawal, including obligations,
the performance of which extend beyond the effective date of withdrawal.
5.
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 interstate commission.
Dissolution of the Compact
1.
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 (1) member state.
2.
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 XIII
SEVERABILITY AND CONSTRUCTION
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.
The provisions of this compact shall be liberally construed to effectuate its
purposes.
Nothing in this compact shall be construed to prohibit the applicability of other
interstate compacts to which the states are members.
ARTICLE XIV
BINDING EFFECT OF COMPACT AND OTHER LAWS
Other Laws
1.
Nothing herein prevents the enforcement of any other law of a member
B.
state that is not inconsistent with this compact.
Binding Effect of the Compact
1.
All lawful actions of the interstate commission, including all rules and
bylaws promulgated by the interstate commission, are binding upon the
member states.
2.
All agreements between the interstate commission and the member
states are binding in accordance with their terms.
3.
In the event any provision of this compact exceeds the constitutional
limits imposed on the legislature 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.
Effective:July 20, 2012
History: Created 2012 (1st Extra. Sess.) Ky. Acts ch. 1, sec. 12, effective July 20,
2012.
Legislative Research Commission Note (7/20/2012). 2012 (1st Extra. Sess.) Ky.
Acts ch. 1, sec. 12, Article XI, B. states that the compact contained in this
statute "shall become effective and binding upon legislative enactment of the
compact into law by no less than six states." At the time of the codification of this
statute, that threshold had not been met.
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