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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
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federal Controlled Substances Act;
"Prescription Monitoring Program" means a program that collects, manages,
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 state’s 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
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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
The commission shall establish security requirements through rules for the
transmission of prescription data.
The commission shall foster the adoption of open (vendor- and technology-neutral)
standards for the technology infrastructure.
The commission shall be responsible for acquisition and operation of the
technology infrastructure.
ARTICLE V
FUNDING
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.
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
commission’s 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.
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.
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.
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.
A. 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.
B. The commission shall consist of one (1) voting representative from each member
state who shall be that state’s 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 state’s Prescription Monitoring Program.
C. 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.
D. 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.
E. 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.
F. 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.
G. 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.
H. 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.
I.
The commission’s 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.
J.
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 commission’s 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 commission’s participation in a civil action or
other legal proceeding.
K. For a meeting, or portion of a meeting, 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 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
state’s prescription monitoring program statutes, regulations, or policies. This
applies only to changes that would affect the administration of the compact;
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To issue, upon request of a member state, advisory opinions concerning the
meaning or interpretation of the interstate compact, its bylaws, rules and actions;
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;
To establish and maintain one (1) or more offices;
To purchase and maintain insurance and bonds;
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 commission’s 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
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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
5.
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 chairperson’s absence or disability, the vicechairperson, 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 commission’s 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
A.
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 commission’s 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 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 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
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 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
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commission shall be invalid and have no force or effect. Any rules promulgated by
the commission shall not override the state’s authority to govern prescription
drugs or each state’s 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
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 compact’s purposes and intent. The
provisions of this compact and the rules promulgated hereunder shall have
standing as statutory law but, shall not override the state’s authority to
govern prescription drugs or the state’s 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
C.
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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 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 attorney’s 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
attorney’s 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
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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 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 state’s 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
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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 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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