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PA Bulletin, Doc. No. 06-77



Notice of Comments Issued

[36 Pa.B. 243]

   Section 5(g) of the Regulatory Review Act (71 P. S. § 745.5(g)) provides that the Independent Regulatory Review Commission (Commission) may issue comments within 30 days of the close of the public comment period. The Commission comments are based upon the criteria contained in section 5.2 of the Regulatory Review Act (71 P. S. § 745.5b).

   The Commission has issued comments on the following proposed regulation. The agency must consider these comments in preparing the final-form regulation. The final-form regulation must be submitted within 2 years of the close of the public comment period or it will be deemed withdrawn.

Reg. No. Agency/TitleClose of
the Public
Comment Period
IRRC Comments Issued
6-293 State Board of Education
Certification of Professional Personnel
35 Pa.B. 5988 (October 29, 2005)
6-295 State Board of Education
Academic Standards and Assessment
35 Pa.B. 6107 (November 5, 2005)
6-296 State Board of Education
Academic Standards and Assessment
for Career Education and Work
35 Pa.B. 6118 (November 5, 2005)
15-429 Department of Revenue
Realty Transfer Tax Amendments
35 Pa.B. 6096 (November 5, 2005)
16A-4916 State Board of Medicine
Physician Assistants
35 Pa.B. 6127 (November 5, 2005)

State Board of Education Regulation #6-293
(IRRC #2502)

Certification of Professional Personnel

December 28, 2005

   We submit for your consideration the following comments on the proposed rulemaking published in the October 29, 2005 Pennsylvania Bulletin. Our comments are based n criteria in Section 5.2 of the Regulatory Review Act (71 P. S. § 745.5b). Section 5.1(a) of the Regulatory Review Act (71 P. S. § 745.5a(a)) directs the State Board of Education (Board) to respond to all comments received from us or any other source.

1.  Section 49.1. Definitions.--Consistency with statute; Reasonableness; Clarity.

Substantive provisions in definitions

   Substantive provisions in a definition cannot be enforced. The following definitions contain substantive provisions: ''Continuing professional education,'' ''Intern certificate,'' and ''Prekindergarten.'' The substantive provisions in these definitions should be deleted and addressed in the appropriate section of the regulation.

Continuing professional education

   In addition to the concern with substantive provisions in this definition, there is another concern. The statute specifies in 24 P. S. § 12-1205.2(b) that ''one (1) credit of college studies or continuing professional education courses shall be equivalent to thirty (30) hours of continuing education programs, activities or learning experiences.'' However, this is not included in the regulation. Since this is a requirement to maintain a certificate in active status, the acceptable combination of credits should be made clear in Section 49.17, along with the number of hours required.

Unclear definitions

   The definitions of ''Day-to-day substitute permit,'' ''Emergency permit,'' and ''Long-term substitute permit'' are not clearly written. These definitions use the term being defined, include what appears to be extraneous information and use conditional phrases such as ''may be issued.'' They should be rewritten.

   As an illustrative example, the Board should consider whether the following language would be sufficient:

   Day-to-day substitute permit--A permit issued for no longer than 20 consecutive days to fill the absence of professional certified personnel.

   Emergency permit--A permit issued to fill a vacancy resulting from resignation, termination, retirement, death or the creation of a new position.

   Long-term substitute permit--A permit issued for an indeterminate period to fill the absence of professional certified personnel.

Diverse learners

   The term ''diverse learners'' in Sections 49.13(a), 49.16(d) and 49.17(a)(6) should be defined. In addition, the Board should consider the suggestion of the Education Law Center (ELC) that language be added to several sections of the regulation for diverse learners. The Board should also explain how the regulation sufficiently accommodates diverse learners.

2.  Section 49.11. General.--Reasonableness.

   The Board is deleting the language in Subsection (a) that states, ''Certificates and letters of eligibility in force in this Commonwealth on September 25, 1999, shall continue in force . . . until they expire by virtue of their own limitations.'' Have all of these certificates or letters of eligibility expired? If not, this language should be retained.

3.  Section 49.14. Approval of institutions.--Clarity.

   Subsection (x)(5) contains the phrase ''articulation agreement.'' To clarify this term, the Board should add a definition to this section.

4.  Section 49.17. Continuing professional education.--Consistency with statute.

   In Subsection (a)(3), the list of persons who develop the plan is not consistent with the statute (24 P. S. § 12-1205.1(b)). For example, the statute requires ''The committee shall include parents of children attending a school in the district.'' This does not appear in the regulation. The list in the regulation should either be made consistent with the statute or the regulation should just cross reference the statute.

5.  Section 49.32. Exceptional case permit.--Clarity.

   For clarity, the term ''exceptional case permit'' should be defined in Section 49.1 (relating to Definitions).

6.  Section 49.53. Elimination or change of types/categories of certificates.--Clarity.

   We have two concerns with this section.

   First, in Subsection (b), what constitutes a ''cogent request'' is not clear.

   Second, it is not clear what triggers the start of the 150-day time period in Subsection (d). What submission will start this clock?

7.  Section 49.84. Collegiate credit acceptable for renewal or conversation of the Instructional I Certificate.--Clarity.

   The Board has indicated that Instructional I Certificates are not renewable. However, Subsection (a) in the Board's existing regulations states, ''College credits acceptable for renewal of the Instructional I Certificate . . . .'' This subsection should be amended, in the final-form regulation, to accurately reflect the Board's position that Instructional I Certificates are not renewable.

8.  Section 49.91. Criteria for eligibility.--Clarity.

   It is unclear what the term ''intensive supervision'' in Subsection (c) requires. The Board should define this term to specify how much supervision is required.

State Board of Education Regulation #6-295
(IRRC #2499)

Academic Standards and Assessment

January 4, 2006

   We submit for your consideration the following comments on the proposed rulemaking published in the November 5, 2005 Pennsylvania Bulletin. Our comments are based on criteria in Section 5.2 of the Regulatory Review Act (71 P. S. § 745.5b). Section 5.1(a) of the Regulatory Review Act (71 P. S. § 745.5a(a)) directs the State Board of Education (Board) to respond to all comments received from us or any other source.

1.  Section 4.52. Local assessment systems.--Economic and Fiscal Impact; Reasonableness; Feasibility; Clarity.

   The description in the Preamble of the amendment to Subsection (c) considerably understates the change in requirements. We find that proposed Subsection (c) adds significant changes in requirements and enforcement provisions to local assessment systems including:

   *  If a school entity chooses to use local assessment tests, the school entity must demonstrate the local assessment test is comparable to Pennsylvania System of School Assessment (PSSA) test.

   *  The existence of significant numbers of students not achieving proficiency on the PSSA who are deemed proficient by a local assessment will raise an inference that the local assessment is not aligned with the PSSA or the PSSA's meaning of proficient.

   *  A school entity whose local assessment system certification is rejected by the Department of Education (Department) shall use the PSSA until the school entity receives approval of its local assessment.

   *  If the Secretary is not satisfied with the form or accuracy of the report and certification that have been submitted by the school entity, the Secretary will exercise the powers under Section 2552 of the School Code (24 P. S. § 25-2552) regarding withholding State appropriations.

   A joint comment in strong opposition to the proposed revisions of Subsection (c) was submitted by the Pennsylvania School Boards Association, Pennsylvania Association of School Administrators, Pennsylvania State Education Association, American Federation of Teachers, and Pennsylvania Association of Vocational Administrators. Several individual school districts commented in opposition also. These commentators represent a broad spectrum of professionals involved in education.

   The proposed rulemaking does not contain sufficient information to fully evaluate its requirements and impact. The regulation imposes new requirements for school entities to monitor, analyze and report on the progress of their students. If these are not done satisfactorily, the Secretary will take the devastating action of withholding State appropriations. In the final-form regulation submittal, the Board must respond with further information to support this revision including:

   *  Whether this regulation will make the PSSA essentially a high school exit examination. How many school entities currently have local assessment systems in place that would be acceptable to the Board under the proposed amendments and how many do not? How many use the PSSA?

   *  How much will it cost for a school entity to develop, get approval and maintain a local assessment system? In comparison, what is the cost of using the PSSA?

   *  Whether the PSSA is a valid indicator of proficiency, particularly in special education and English language learner programs. How does the Board evaluate the PSSA and why is it a valid standard?

   In addition, several provisions within the regulation are not clear:

   *  How will the Department evaluate local assessment systems in comparison to the PSSA? What criteria will the Department use? How much could a local assessment system vary from the PSSA and still get approval?

   *  In the event a local assessment system is rejected, how much warning will the school entity have? Can corrective action be taken or will the PSSA be automatically required? How can the Department's decision be appealed? Which assessment must a school entity use during the appeal?

   *  In regard to Subsection (c)(3), what are ''significant numbers of students''? This trigger point provision is vague and must be amended to a clear standard. For the trigger point added to the regulation, the Board also needs to explain in the Preamble why the standard chosen is appropriate and how many school entities currently do not meet the standard.

   *  Subsection (c)(3) also requires an ''annual report on a form and in a manner determined by the Department . . . and providing data specified by the Department . . . .'' In the final-form regulation, the Board should provide a full description of the report, the data that will be required and at what point in the year a school entity will have to file this information.

   *  Subsection (c)(4) states that if the requirements are not met satisfactorily, the Secretary ''will'' withhold State appropriations. Given the extraordinary magnitude of this action, why did the Board chose the word ''will'' rather than the word ''may'' that would allow the Secretary some discretion?

   We will evaluate the Board's response to determine if the Regulatory Review Act criteria of economic and fiscal impact; reasonableness; feasibility and clarity have been met.

2.  Section 4.3. Definitions.--Clarity.

Definitions of Prekindergarten and School entity

   The use of the term ''school entity'' within the definition of ''prekindergarten'' would allow several types of schools to operate prekindergarten programs including cyber schools. A commentator believes distance learning tools would be inappropriate for prekindergarten children. The Board should explain how all of the education providers included in the definition of ''school entity'' can adequately operate prekindergarten programs.

Substantive provisions in definitions

   Substantive provisions in a definition are not enforceable. We note that Paragraph (ii) of the definition of ''prekindergarten'' is substantive. This provision should be moved to the body of the regulation.

   Also, in the definition of ''school entity'' the phrase ''provided, that this chapter applies to school entities only to the extent provided by law'' is substantive and unnecessary. The phrase should be deleted from the definition.

3.  Section 4.13. Strategic plans.--Need; Clarity.

Subsection (a)

   The reference to Section 4.83 is being deleted since that section is now obsolete. The Board is adding the statement ''The plan shall be developed by a schedule to be determined by the Department.'' The proposed amendments should provide guidance to when and where strategic plans must be filed.

Subsection (c)

   The following sentence is being added:

Each plan, as received and filed by the Department, becomes an extension of this chapter uniquely adapted to each school entity and can only be changed by the strategic planning committee approved by the local school board.

   There are two concerns with this sentence. First, it is not clear what is meant by the phrase ''becomes an extension of this chapter'' and why this phrase is needed. Second, the phrase ''can only be changed by the strategic planning committee'' conflicts with the descriptions in existing Subsections (d) and (e) of how a plan can be altered. For these reasons we recommend deleting this sentence. Alternatively, the Board should explain why it is needed.

Subsection (g)

   This subsection begins with the phrase ''as an extension of this chapter.'' Similar to the preceding comment on Subsection (c), the meaning of this phrase is not clear. This phrase should be deleted. If it is retained, further support for its need should be provided.

4. Section 4.25. Languages.--Clarity.

   Subsections (a) and (c) mention ''World Language Standards issued by the Department.'' The regulation should include a cross reference to, or explanation of, where these can be found.

5.  Section 4.29. HIV/AIDS and other life-threatening and communicable diseases.--Clarity.

   Subsection (c) states ''It is recommended that the school district's age appropriate planned curriculum conform to the 'Guidelines for Effective School Health Education to Prevent the Spread of AIDS,' issued by the United State Centers for Disease Control and Prevention or other science-based guideline.'' Since this is phrased as a recommendation, it is not enforceable. The Board should either make this a requirement or delete it.

6.  Miscellaneous Clarity.

   *  The definition of ''world language'' appears to be only relevant to Section 4.25. If so, it could be moved to that section. Also, the phrase ''in this Commonwealth'' is not needed.

   *  The word ''school'' should be added before the word ''entity'' in Section 4.13(e).

   *  In Sections 4.21(c)(6) and (8), what are ''basic movement skills and concepts'' and ''principles and strategies of movement''? Also, how do they differ?

   *  A commentator believes the grade levels specified in Subsections 4.51(b) and (d) are inconsistent with actual practice. The Board should review these grade levels and update them as necessary.

   *  Subsection 4.61(a) has a vague citation to ''Federal and State law.'' Citations to the applicable laws should be added.

State Board of Education Regulation #6-296
(IRRC #2500)

Academic Standards and Assessment for Career Education and Work

January 4, 2006

   We submit for your consideration the following comments on the proposed rulemaking published in the November 5, 2005 Pennsylvania Bulletin. Our comments are based on criteria in Section 5.2 of the Regulatory Review Act (71 P. S. § 745.5b). Section 5.1(a) of the Regulatory Review Act (71 P. S. § 745.5a(a)) directs the State Board of Education (Board) to respond to all comments received from us or any other source.

1.  General.--Reasonableness; Clarity.

   The Education Law Center (ELC) suggested several additions to these standards in its comment letter. While we do not agree with all of ELC's suggestions, we concur with ELC that the Board should consider adding language that will help ensure that students with disabilities will be given the opportunity to be adequately prepared for the workforce.

   For example, the Board should consider adding a reference to the Americans with Disabilities Act (ADA) in Standards 13.2.8.E and 13.2.11.E and add a definition of ADA to the Glossary. Also, the Board should consider adding a reference to ''Vocational Rehabilitation Centers'' in Standard 13.1.11.E, as suggested by ELC.

2.  Standard 13.3. Career Retention and Advancement.--Clarity.

   Standard 13.3.3.F. requires students to ''identify changes that occur at both home and school.'' To clarify this requirement, the Board should identify what sort of ''changes'' it expects the students to identify and the relevance of these ''changes'' to Career Retention and Advancement. A similar concern applies to Standard 13.3.5.F.

3.  XXXIX. Glossary.--Clarity.

   We have identified the following terminology used in the Glossary which does not match the terminology used in the text of the standards:

   *  The term ''Child Labor Laws'' is defined in the Glossary, but the term used in Standards 13.2.8.E. and 13.2.11.E. is ''Child Labor Law.''

   *  The term ''Non-traditional careers'' is defined in the Glossary, but the term used in Standards 13.1.5.B and 13.1.8.B is ''nontraditional.''

   *  The term ''O*NET'' is defined in the Glossary, but the term used in Standards 13.2.8.B and 13.2.11.B is ''O-NET.''

   Also, the term ''traditional careers'' does not appear to be used in this regulation. If this term is not included in the text of the standards, it should be deleted from the Glossary.

Department of Revenue Regulation #15-429
(IRRC #2503)

Realty Transfer Tax Amendments

January 4, 2006

   We submit for your consideration the following comments on the proposed rulemaking published in the November 5, 2005 Pennsylvania Bulletin. Our comments are based on criteria in Section 5.2 of the Regulatory Review Act (71 P. S. § 745.5b). Section 5.1(a) of the Regulatory Review Act (71 P. S. § 745.5a(a)) directs the Department of Revenue (Department) to respond to all comments received from us or any other source.

1.  Section 91.101. Definitions.--Consistency with the statute; Clarity.

   Association--The Philadelphia Bar Association (PBA) has questioned whether new language pertaining to restricted professional companies is intended to mean that the characterization of those companies depends on how many members it has and also questioned the need to make such a distinction. They suggest that the phrase ''that is deemed to be a limited partnership'' be deleted. Does the characterization of a restricted professional company depend on how many members it has?

   Living trust and ordinary trust--These definitions differ from the statutory definitions found at 72 P. S. § 8101-C. Why do these definitions differ? We recommend that the statutory and regulatory definitions be verbatim or, in the alternative, that the regulatory definitions cross reference the statutory definitions.

   Ordinary trust--This definition includes a citation to 15 Pa.C.S. (relating to Association Codes). The correct citation is 15 Pa.C.S.A (relating to corporations and unincorporated associations). The final-form regulation should be amended accordingly. We also recommend that a more specific citation to the relevant chapters of 15 Pa.C.S.A. be added to the regulation. This would assist the regulated community in complying with the requirements of the regulation.

   Testamentary trust--This definition includes the phrase ''private trust.'' What is a ''private trust''? Does the term include ''living trusts'' and ''ordinary trusts''? The Department should add a definition of this term.

2.  Section 91.132. Bona fide sale transactions.--Clarity.

   This section has been amended to address the Pennsylvania Supreme Court decision in Allebach v. Commonwealth, 546 Pa. 146,683 A.2d 625 (1996). The PBA believes that the regulation should be revised to '' . . . include the value amounts received by a seller's affiliate for an assignment of a contact.'' Has the Department considered including more detailed language in this provision?

3.  Section 91.152. Confirmatory deed.--Consistency with the statute; Clarity.

   The Department has added language to this section with the intent of providing additional guidance on mergers and business form changes. The PBA has submitted extensive comments on the new language. They believe that the new language contains numerous errors in interpreting the Realty Transfer Tax Act (Act) and case law. The PBA has made suggestions to correct each of the potential errors it has identified. We urge the Department to carefully consider and respond to all issues raised by the PBA.

   In addition, Subsections (b) and (c) are incomplete. Both subsections have omitted the phrase ''is not taxable.'' This phrase should be added to both subsections.

4.  Section 91.154. Documents involving corporations, partnerships, limited partnerships and other associations.--Consistency with the statute; Clarity.

   New language has been added to this section that clarifies the taxation regarding conversion of real estate between certain types of businesses and their owners. We have three recommendations. First, the Department should explain the need for the exclusions created by the new language. A commentator has suggested that the approach proposed by the Department will create '' . . . an underground of unrecorded title documents that would provide no one with the necessary notice or access to information that is the basis of the Statute of Frauds and recording process.'' The PBA also commented on the new language. They believe it is not consistent with general concepts of the Act and it should be deleted.

   Second, Subsections (b), (c) and (d) should include a citation to the ''Statute of Frauds.'' This citation should also be included in § 91.171.

   Third, the term ''writings,'' should be defined. This term is included in Subsections (b), (c) and (d), and also in §§ 91.170(a) and 91.171. The Department has explained that this term can mean any sort of document from a deed to a sales invoice. We recommend that this definition be included so that all parties understand the meaning the Department will ascribe to this term.

5.  Section 91.155. Timber, crops and natural resources.--Reasonableness; Clarity.

   This section pertains to the taxability of timber, crops and natural resources. We have two concerns. First, the term ''natural resources'' was added to the title of this section, even though this section only addresses timber and products of the soil. Therefore, the term ''natural resources'' should be deleted from the title.

   Second, proposed language in Subsection (b) establishes a standard that cannot be enforced. Under existing Subsection (b), standing timber is considered nontaxable personal property if the instrument provides for severance and removal ''within an immediate ascertainable date.'' The proposed rulemaking changes the standard from an immediate specified date to '' . . . at once or as soon as it can be reasonably done.'' The Department has stated that a reasonable amount of time could be established by using industry standards on a case-by-case basis. We believe that the contract or sales agreement should specify a reasonable time frame for removing the timber, such as within six months. This would provide the parties involved in the transaction and the Department with a measurable standard that could be enforced.

6.  Section 91.165. Reservations or conveyances of life estates.--Statutory authority; Implementation procedures.

   Subsection (c) states the following: ''The Department will update Table I at least once every 5 years by published notice in the Pennsylvania Bulletin.'' It is our understanding that the table is based on Federal actuarial tables and adjusted by the Department. A codified regulation has the full force and effect of law. It cannot be amended or updated by a published notice in the Pennsylvania Bulletin. If the Department wants to update the table, it must do so by promulgating another regulation. Therefore, Subsection (c) should be deleted.

   In the alternative, the table could be deleted from the regulation and in its place the Department could specify how it calculates the values in the table. This would allow the Department to update the table as needed as a statement of policy without promulgating another regulation.

7.  Section 91.170. The rule in Baehr Bros. v. Commonwealth, 493 Pa. 417, 426 A.2d 1086 (1981).--Implementation procedures; Clarity.

   This section sets forth rules to determine whether a document is taxable. As noted by the PBA, it appears to restate the principles set forth in Baehr Bros. v. Commonwealth, 493 Pa. 417, 426 A.2d 1086 (1981). The PBA believes this new section lacks clarity and questions how it will be interpreted and administered by the Department. We agree and ask the Department to provide detail on how it intends to administer this new section.

   Also, PBA questions whether the Department has incorrectly cited the Baehr Bros. decision. It feels that the correct citation is 487 Pa. 417, 426 A.2d 1086 (1981). The case should be correctly cited in the final-form regulation.

8.  Section 91.193. Excluded transactions.--Statutory authority.

   Subsection (c) states the following: ''Documents that convey or evidence the transfer of real estate between the parties involved in the transactions enumerated in subsection (b) are excluded from tax. Subsection (b) has no application to acquisitions of real estate companies as provided in § 91.202.'' It is being promulgated to codify the Department's policy that the list of excluded transactions in Subsection (b) does not apply to acquisitions of real estate companies. The PBA believes that transfers of interests in a real estate company are statutorily exempt. They also commented as follows: ''There is no rational policy reason to tax transfers of interests in real estate companies where comparable transfers of real estate would be subject to an exclusion or exemption from RTT.'' What is the Department's statutory authority for taxing these types of transactions?

9.  Section 91.195. State-related universities and public charities.--Statutory authority; Consistency with the intent of the General Assembly.

   We have two concerns with this section.

   First, the Department incorrectly excludes ''other State-related institutions,'' such as the Pennsylvania State University, Temple University, the University of Pittsburgh and their affiliates from being considered as excluded parties under this section. The Department indicates that these institutions are not included in the list of excluded parties because it does not believe they are ''instrumentalities of the Commonwealth.'' We disagree.

   Paragraph 6 in 24 P. S. § 2510-503 states ''The Corporation For Penn State is a wholly controlled affiliate of the Board of Trustees of the Pennsylvania State University, a State-related university and an instrumentality of the Commonwealth.'' (Emphasis added). In addition, similar language is found in 24 P. S. § 2510-202(6) for the University of Pittsburgh, 24 P. S. § 2510-2(7) for Temple University, 24 P. S. § 2510-503(7) for the Pennsylvania College of Technology and 24 P. S. § 2510-402(7) for Lincoln University.

   Further, the Act, at 72 P. S. § 8102-C.3(1), states that the realty transfer tax shall not be imposed on ''a transfer to the Commonwealth or to any of its instrumentalities . . . .'' (Emphasis added). Considering this and the fact that the General Assembly is clear that it considers these institutions to be ''instrumentalities of the Commonwealth,'' the Department should amend this section to include them in the list of excluded parties in Subsections (a) and (c). Subsections (b) and (d) should be deleted.

   Second, if the Department does not make the revision discussed above, this section should include an applicable provision from the Institutions of Purely Public Charity Act (IPPC). The IPPC, in 10 P. S. § 374(b), states ''All real property owned by State-related universities . . . shall be deemed public property . . .  relating to the assessment, taxation and exemption of real estate and shall be exempt from all State and local taxation when actually and regularly used for public purposes.'' (Emphasis added).

   Section 374(d) of IPPC defines ''State-related universities'' as ''The Pennsylvania State University and its affiliate, the Pennsylvania College of Technology, the University of Pittsburgh, Temple University and its subsidiaries Temple University Hospital, Inc., and Temple University Children's Hospital, Inc., and Lincoln University.'' This definition does not include the institutions that are part of the State System of Higher Education.

   Therefore, if the Department does not add the ''State-related universities'' to the list of excluded parties, it should add a provision for those institutions that exempts them from the tax when the property is used for public purposes as directed by IPPC.

10.  Section 91.221. Family farm partnership.--Consistency with statute; Need.

   This section establishes the criteria for when an entity qualifies as a family farm partnership. It is being added to address statutory changes to the Act. The PBA has questioned the reason Subsection (a)(2) and (a)(3) impose additional requirements that are not found in the Act. We share the concerns of the PBA. What is the need for these additional requirements?

State Board of Medicine Regulation #16A-4916
(IRRC #2505)

Physician Assistants

January 4, 2006

   We submit for your consideration the following comments on the proposed rulemaking published in the November 5, 2005 Pennsylvania Bulletin. Our comments are based on criteria in Section 5.2 of the Regulatory Review Act (71 P. S. § 745.5b). Section 5.1(a) of the Regulatory Review Act (71 P. S. § 745.5a(a)) directs the State Board of Medicine (Board) to respond to all comments received from us or any other source.

1.  Comments from the House Professional Licensure Committee.--Statutory authority; Legislative intent; Public health and safety; Consistency with the statute; Reasonableness; Implementation procedure; Need; Clarity; Comments, objections or recommendations of a committee.

   The House Professional Licensure Committee (House Committee) submitted comments on this regulation in a letter dated December 15, 2005. It listed comments, concerns and questions in 18 separate points. The House Committee noted that ''the General Assembly intended there to be supervision of a physician assistant (PA) by a physician,'' quoting provisions from Sections 13 and 36 of the Medical Practice Act (Act) (63 P. S. §§ 422.13 and 422.36). It identified several areas of concern in the proposed regulation where there is a need for additional information and further clarification. It also referenced concerns raised by public commentators.

   For example, the existing regulations at Section 18.161(b) state that a ''physician assistant may not be responsible to more than three physician assistant supervisors [supervising physicians] in a medical care facility.'' The proposed regulation will delete this provision. In the Preamble, the Board explains this deletion by asserting that ''regulations should allow for flexible and creative innovation and appropriate use of all members of the workforce.'' However, the Board neglected the specific limitations of the Act at 63 P. S. § 422.13(g) which states ''a physician assistant [employed by a medical care facility] shall not be responsible to more than three physicians.'' If this limitation is too restrictive, then the Act needs to be amended. Barring any change in the statute, this language should be retained in the regulation.

   While we support amending the regulation to reflect the capabilities of PAs, this must be done within the limits of the Act. We also believe more explanation is needed in several areas of PA practice. Therefore, we concur with the comments, concerns and questions of the House Committee and incorporate them into our comments by reference.

2.  Section 18.122. Definitions.--Legislative intent; Consistency with the statute; Reasonableness; Implementation procedure; Clarity.

Direct Supervision and Supervision

   The existing ''direct supervision'' definition reads:

The physical presence of the physician assistant supervisor on the premises so that the physician assistant supervisor is immediately available to the physician assistant when needed.

   The proposed regulation deletes this definition in its entirety. It also revises the existing definition of ''supervision'' by removing the words ''personal direction.''

   In contrast, Section 13(d) of the Act (63 P. S. § 422.13(d)), entitled ''supervision,'' begins with this statement: ''A physician assistant shall not perform a medical service without the supervision and personal direction of an approved physician.'' [Emphasis added.] The second sentence of Subsection (d) gives the Board the authority to ''promulgate regulations which define the supervision and personal direction required by the standards of acceptable medical practice . . . .'' [Emphasis added.]

   Although we recognize the Board's discretion to define ''supervision,'' the statute uses the words ''personal direction'' twice in the same subsection on ''supervision.'' We recommend that the words ''personal direction'' be retained in the definition of ''supervision'' in the regulation.

   Paragraph (C) of the ''supervision'' definition reads:

Personal and regular[--at least weekly--] review by the [physician assistant supervisor] supervising physician of the patient records upon which entries are made by the physician assistant.

   In the proposed regulation, the words ''at least weekly'' are being deleted from the existing regulations even though they provide guidance as to the meaning of the word ''regular.'' We have two concerns.

   First, we suggest that the Board add the minimum standard of ''at least weekly'' or the specific period that is consistent with the minimum standards of acceptable medical practice for the supervising physician's ''timely review'' of the medical records prepared by the physician assistant pursuant to Section 18.159 relating to medical records.

   Second, given the deletion of the definition of ''direct supervision,'' the Board needs to explain its interpretation of terms such as ''personal direction'' in the statute and ''personal contact'' in Section 18.142(a)(3). Does the Board intend that supervising physicians and PAs shall at some point and with some frequency be on the same premises for review and supervision? If not, does the Board foresee situations when all contact between physicians and PAs could be accomplished via telecommunications, or written, electronic or other means?

Supervising physician

   The new definition of ''supervising physician'' seems to imply that there is only one supervising physician per each PA. However, the definitions section also includes definitions of ''primary supervising physicians'' and ''substitute supervising physicians.'' Also, under 63 P. S. § 422.13(g) a PA may be responsible to three physicians. In addition, the House Committee asked for clarification that all physicians assisted by PAs are ''supervising physicians.''

   Therefore, the definition of ''supervising physician'' should indicate that all physicians assisted by PAs are ''supervising physicians'' and also be clarified to indicate that there may be more than one supervising physician.

3.  Section 18.158. Prescribing and dispensing drugs, pharmaceutical aids and devices.--Reasonableness; Need; Clarity.

   The third sentence of Subsection (a)(3) states that a PA ''may write a prescription for a Schedule II controlled substance for up to a 30-day supply if it was originally prescribed by the supervising physician and approved by the supervising physician for ongoing therapy.'' [Emphasis added.] A commentator stated that requiring an original prescription from the physician would be restrictive in rural clinics when the physician is not on site and is redundant since the physician must approve the prescrip-tion. The Board needs to explain the need to require both the original prescription and approval by the physician.


[Pa.B. Doc. No. 06-77. Filed for public inspection January 13, 2006, 9:00 a.m.]

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