PROPOSED RULEMAKING
STATE ARCHITECTS LICENSURE BOARD
[49 PA. CODE CH. 9]
General Revisions
[27 Pa.B. 1566] The State Architects Licensure Board (Board) proposes to amend Chapter 9 (relating to State Architects Licensure Board) to read as set forth in Annex A.
A. Effective Date
The amendments will go into effect upon publication as final rulemaking in the Pennsylvania Bulletin.
B. Statutory Authority
The amendments are proposed under sections 6(a), (b) and (d), 8(b), 13(h) and 14 of the Architects Licensure Law (act) (63 P. S. §§ 34.6(a), 34.6(b) and (d), 34.8(b), 34.13(h) and 34.14).
C. Purpose and Need for the Amendments
In Executive Order 1996-1, February 6, 1996, executive agencies, including the Board, were directed to commence a program of review of existing regulations to ensure that regulations were consistent with the principles and requirements of the Executive Order. By these amendments, the Board proposes to implement its review of its existing regulations. In accordance with the principles of the Executive Order, the Board proposes to delete many regulations which it has determined are either unnecessary, outdated or for which viable nonregulatory alternatives exist. In revisions to existing regulations, the Board proposes to clarify and simplify requirements for licensure by examination and reciprocity. The Board proposes to delete regulations which embody former procedures and standards of the National Council of Architectural Registration Board (NCARB) which have undergone changes since its last major revisions to these regulations in 1986. Substantively, the Board proposes to conform its regulations pertaining to the practice of architecture to current practice and procedures. To do so, the Board proposes new sections concerning the architect's participation in design/build construction projects and construction management. Finally, the Board proposes to amend its regulations regarding complaints to conform to court decisions regarding the separation of prosecutorial and adjudicatory functions.
D. Persons Affected
These proposed amendments will affect individuals who are in architectural schools and architectural internships, candidates for licensure by examination or reciprocity, Pennsylvania licensed architects and persons who practice architecture or a component of the practice of architecture as defined in section 3 of the act (63 P. S. § 34.3).
E. Description of Amendments
Throughout the existing regulations both licensure and registration are used interchangeably when referring to an architect who has been granted a license to practice architecture by the Board. The act, as well as the regulations, require registration of architectural firms. Throughout this proposal, the Board deletes references to registration or certification of an architect and refers to a ''license'' or ''licensure'' as an ''architect,'' reserving the nomenclature ''registration'' to architectural firms which have registered or applied for registration to do business in this Commonwealth. The word ''certification'' is reserved for use in connection with certification by NCARB.
The following is a section-by-section description of the changes which are proposed in each major category.
Affiliations with NCARB and Board Functions
The Board proposes to delete §§ 9.12--9.17, 9.22--9.26 and 9.28--9.35. These sections now describe the status of the Board as a member of the NCARB and describe Board officers, staff and their duties and general information. The Board has determined that these regulations are unnecessary and do not assist the candidate for licensure or the architect in providing either useful or necessary information as to Board operations or the requirements of the act.
Registration by Examination
The Board proposes to revise its regulations pertaining to the eligibility of candidates to sit for the examination. This proposal would delete §§ 9.42, 9.43, 9.45, 9.47 and 9.48. Owing to 1989 amendments to the eligibility requirements for examination, the existing classifications are out-of-date. The 1989 amendments under existing § 9.48 adopted the education requirements of NCARB certification which require that candidates eligible to take the licensure examination in this Commonwealth must possess an NAAB professional degree in architecture.
The Board proposes to recodify the education requirement in a revised § 9.46. Section 9.49a pertaining to the required training would be revised to delete outdated transitional language when the Intern Development Program was adopted as a prerequisite for licensure. The Board proposes to add a new subsection (b) providing information helpful to the candidate in submitting a complete application.
Finally, the Board adds a new § 9.50 (relating to reapplications) which adds language to deal with reapplications. The candidates have up to 5 years to take and pass an examination. The section further advises candidates that they must meet the requirements of the law and the regulations in effect at the time they reapply for the examination.
Reciprocity
The Board proposes to revise §§ 9.61 and 9.62 and delete § 9.63 concerning reciprocal licensure in order to clarify the manner in which an individual may obtain a license to practice architecture in this Commonwealth by virtue of possessing a license in another jurisdiction. The proposal would establish three avenues by which an individual may become licensed by reciprocity:
(1) Having been licensed by a state, territory or country with education, training and examination requirements equal to that in this Commonwealth at the time the architect was originally licensed.
(2) Having been licensed under examination, education or experience requirements not equal to the requirements of the Commonwealth, but having at least 10 years of continuous practice as a licensed architect.
(3) Having been licensed without examination by submitting architectural work on completed projects for Board review.
NCARB Certification
Section 9(a) of the act (63 P. S. § 34.9(a)) requires that the Board accept NCARB certification as presumptive evidence of meeting the requirements for licensure in this Commonwealth. To receive an NCARB certificate, an individual must meet NCARB education, training and examination standards and hold a current license from an NCARB member board.
The Board proposes to delete §§ 9.71--9.73 relating to NCARB certification before examination. These sections are outdated because they refer to examination procedures employed when the ARE was in written format. As of February 1997, the licensure examination is given in computer format. See 26 Pa.B. 5101 (October 26, 1996).
Recognition of NCARB certification as prima facie evidence of meeting the education, training and experience requirements of the Commonwealth would be recodified at § 9.61 (relating to general requirements).
Application Procedures
The Board proposes to delete §§ 9.87, 9.89 and 9.91. All of these provisions are outdated and no longer applicable. The new computer-administered examination provided by NCARB gives candidates notice as to whether or not they have passed an examination at the time they take the examination. Although the actual license is issued by the Board, notification of having passed the examination is sent to the candidates by NCARB's test administrator.
Section 9.88 (relating to verification of IDP) would be revised under the proposal and renamed. Completion of the Intern Development Program (IDP) of NCARB has been required by the Board as a precondition to take the licensure examination since 1991. Training as an architect begins after a candidate completes his professional education. Interns apply directly to NCARB which maintains a record of the interns' practice experience. The completion of IDP is monitored by NCARB. Certification of having completed the training required under IDP guidelines is sent directly by NCARB to the Board where the intern has applied for licensure.
The Board proposes to revise § 9.93 (relating to reporting of disciplinary actions, criminal convictions and other licenses), the self-reporting requirement for other states' disciplinary actions to make compliance simpler and easier for licensees to understand. Licensee compliance will assure that the Board will receive the earliest possible notice of disciplinary actions or criminal convictions after their occurrence.
Reactivation of Lapsed and Expired Licenses
The Board proposes to make minor editorial changes to §§ 9.101--9.103 (relating to reactivation of lapsed and expired licenses).
Examination
Section 9.116 (relating to admittance) is proposed to be amended to notify candidates of identification required for admission to the examination and prohibited conduct during an examination.
The Board proposes to delete § 9.120 pertaining to the administration of examinations. Under the new computer-administered examination procedure of NCARB, candidates who the Board has determined are eligible for licensure by examination may take the examination in any jurisdiction in which it is offered by NCARB. Candidates may schedule and take any part of the examination in any sequence. Examination results are sent directly to the jurisdictions where the candidate has applied for licensure.
Grading and Review
The Board proposes to revise §§ 9.131 and 9.132 (relating to examination grading; and grading compilation) to delete outdated references to the C/ARE examination which is no longer used and to make appropriate cross reference to § 9.27 (relating to inactive records), which places a 5-year limit on the time allowed to take and pass all parts of the ARE.
Architect's Seal
The Board has proposed to revise §§ 9.141--9.143 and 9.145 and delete § 9.144 to reflect recognition in section 12(a) of the act (63 P. S. § 34.12(a)) that a stamp may be used in lieu of a seal. The Board proposes to revise language with reference to a seal to include a stamp inasmuch as the Board has determined that no special rule should apply to either one or the other with regard to impressing the seal or making the stamp on construction documents, contract documents and other architectural work prepared by an architect or under his direct supervision.
In addition, the Board intends to add a new subsection to § 9.141 (relating to requirement) to require that an architect must impress a seal or must stamp all contract documents, plans and specifications which he prepares or which are prepared under his direct supervision. The new subsection (b) would also require that the licensed architect oversign all original documents. An architect's placing of the architect registration seal and signature on a document certifies that the architect has exercised direction, guidance and judgment in all aspects of the plan pertaining to health, safety and welfare issues, and accepts legal responsibility on architectural matters embodied in the document.
The Board proposes to revise § 9.142(a) to simplify language and to place upon the architect the responsibility for knowledge of his licensure status.
Finally, the Board proposes to delete § 9.144. This matter is now covered in § 9.142 , which will provide that it is unlawful for an architect to seal or stamp documents while a license is not current for any reason (revocation, suspension or not current).
Standards of Professional Conduct
Section 6(b) of the act authorizes the Board to establish standards of professional conduct for architects. It is the Board's intent that the standards will form the basis for disciplinary action and, therefore, should not contain precatory injunctions or hortatory language. To the contrary, the Board believes the regulation should contain clear unambiguous statements of conduct which is proscribed or required.
The standards have, therefore, been revised to command compliance of every licensed architect and subject an architect to revocation, suspension, reprimand or civil penalty for a violation or departure from a standard of professional conduct. In addition, the Board proposes to add four new categories of prohibited conduct. Subsection (j) concerns a violation of a law while in the conduct of an architect's professional practice. Subsection (k) concerns the use of a seal contrary to section 12(a) of the act which prohibits an architect from signing or sealing professional work which was not prepared under the direct supervision of the architect. Subsection (i) concerns the architect's responsibility to assist architect interns in the development training and the architect's responsibility when verifying architectural work performed by an intern which he is responsible for a supervising architect. Subsection (1) proscribes fraudulent representations to a perspective client or an existing client or an employer in connection with obtaining employment to perform architectural work.
The Board proposes to delete § 9.152. The Board finds this section is no longer necessary. This section was originally intended to abrogate a former rule which prohibited price quotations as unethical. Today, and for many years prior to this date, the regulation states it as an accepted standard of practice. Continuing its existence in these rules is both confusing and unnecessary for the licensed professional architect.
Professional and Corporate Practice
The Board proposes to make amendments to § 9.161 (relating to compliance with applicable statutes) to update statutory references to the Associations Code with regard to firm practice.
Section 9.163 (relating to prior approval by the Board) concerns Board approval of architectural firm practice. Although an architect licensed in another jurisdiction may offer to perform architecture without first obtaining a license, section 13(h) of the act authorizes the Board to require annual filings of the entities which offer to practice or practice in this Commonwealth. This section implements section 13(h) of the act. In accordance with section 13(f) of the act, the Board proposes to add additional language requiring that the proposed letterhead include the name of at least one of the principals of the firm who holds a license to practice architecture in this Commonwealth. The addition of this information will assist the Board in expeditiously processing firm practice requests.
The proposed amendment to § 9.165 (relating to architect as employe) will eliminate a transitional clause it made in 1987 which is no longer applicable.
Under corporate practice, the Board proposes to add two new sections. These sections concern the practice of architecture in conjunction with other entities and design professionals. Since the enactment of the act in 1982, two methods of delivery of a building to an owner or client have increased in usage throughout the United States. Both are designed to facilitate and speed the design and construction process. These delivery processes are alternatively referred to as construction management and design-build. Both these terms are defined in § 9.2 (relating to definitions).
Construction management is included as a service within the practice of architecture as defined in section 3 of the act. The Board proposal would define construction management as planning, managing and coordinating construction in order to serve the economic investment of all entities through the control of time, cost and quality. Under § 9.167 (relating to design/build projects), the Board proposes to require the construction management service be provided through an architect or a professional engineer in responsible charge of the construction management services. Section 9.167 would also provide notice that the Board does not consider individuals performing general construction work to be within the types of activities the Legislature intended to reserve to licensed architects.
With regard to design-build activities, the Board proposal would define design-build project as a process in which a single entity executes a contract document with an owner to provide combined architectural and construction services. Although not recognized in the act, throughout the United States the selection by both public and private owners of the design-build delivery process has been increasing. There are numerous versions of the design-build process, some of which the Board believes would be unlawful in the act.
For purpose of regulation, a design-build project is defined as a process whereby the owner obtains both design and construction services through a contract with a single entity. The entity accepts full responsibility for providing both design services and the construction of the building. Design-build contrasts with the traditional building plan in which separate contracts are made for design and construction. The act declares that licensure is required to practice architecture to protect the health, safety and property of the people of this Commonwealth. See section 2 of the act (63 P. S. § 34.2). A license is required for design services of a structure or group of structures which have as their principal purpose, human habitation or use. The practice of architecture is further defined to include the rendering or offering to render architectural services. See section 3 of the act.
By proposed § 9.167 (relating to design/build projects), the Board intends to provide rules governing the architect's participation in a design-build project. This section would require the architect and the design-build entity to enter into a written agreement which would require that the architect participate in all material aspects of architectural services provided. In addition, in any offering for design-build, the design-build entity must certify: the name of the architect; that the architect is contractually and professionally responsible for providing the architectural services and will have direct supervision over the architectural work; and that the architect's services will not be terminated without the consent of the owner.
Use of Names
The Board proposes to add a new sentence to § 9.171 (relating to the title ''Architect'') that graduates of professional schools and interns in training may not use the title ''architect'' prior to passing licensure examination and any offering of architectural services.
The Board also proposes to delete existing §§ 9.172 and 9.173 as unnecessary.
The Board proposes to amend § 9.177 (relating to use of names of deceased, withdrawn or retired persons firm names) to provide that a firm should be able to retain the use of the name of a withdrawn owner, as well as a retired or deceased owner, if the parties to the original firm agreed to do so. By this proposal, the Board responds to concerns from architects practicing in this Commonwealth that such a procedure should be permitted in the use of firm names.
Complaints Procedures
Under section 21(a) of the act (63 P. S. § 34.21(a)), the Board has authority to conduct investigations of complaints regarding licensed architects as well as applicants. In accordance with Lyness v. State Board of Medicine, 529 Pa. 535, 605 A.2d 1204 (1992), the Board has delegated this function to the Office of Prosecution of the Bureau of Professional and Occupational Affairs. The Board has retained its authority to conduct hearings and render adjudications and refer matters to hearing examiners under section 21(b) and (c) of the act. The Board proposes to amend §§ 9.181, 9.182, 9.185 and 9.202 to reflect the Board's compliance with directives of the Lyness decision pertaining to the exercise of its investigatory and prosecutorial powers.
Classifications
The Board proposes to delete various classifications of license. Currently, the Board maintains only two classifications, licensure by examination and licensure by reciprocity. These classifications are used for administrative purposes only when, for example, verifying licensure to another jurisdiction, and have no effect on the ability of a licensee to practice architecture in this Commonwealth.
F. Fiscal Impact
The proposal will have no ascertainable fiscal impact on the Commonwealth or local governments. With regard to the regulated population and candidates for licensure, the proposed amendments will result in fewer regulatory requirements and eliminate some restrictions of existing regulations pertaining to corporate practice and filings.
G. Paperwork Requirements
The proposed amendments will add no additional paperwork requirements for the Commonwealth, its local governments or the regulated population.
H. Regulatory Review
Under section 5(a) of the Regulatory Review Act (71 P. S. § 745.5(a)), the Board submitted a copy of these proposed amendments on March 13, 1997, to Independent Regulatory Review Commission (IRRC) and the Chairperson of the House Professional Licensure Committee and the Senate Consumer Protection and Professional Licensure Committee. In addition to submitting the proposed amendments, the Board has provided IRRC and the Committees with a copy of a detailed Regulatory Analysis Form prepared by the Board in compliance with Executive Order 1996-1, ''Regulatory Review and Promulgation.'' A copy of this material is available to the public upon request.
If IRRC has objections to any portion of the proposed amendments, it will notify the Board within 30 days of the close of the public comment period. The notification shall specify the regulatory review criteria which have not been met by that portion. The Regulatory Review Act specifies detailed procedures for review, prior to final publication of the regulations, by the Board, the General Assembly and the Governor of objections raised.
I. Public Comment
Persons wishing to make comments, suggestions or objections to the proposed amendments may do so by writing Kathleen Davis, Board Administrator, State Architects Licensure Board, P. O. Box 2649, Harrisburg, PA 17105-2649 within 30 days of publication of this proposal in the Pennsylvania Bulletin.
DENNIS L. ASTORINO,
PresidentFiscal Note: 16A-413. No fiscal impact; (8) recommends adoption.
Annex A
TITLE 49. PROFESSIONAL AND VOCATIONAL STANDARDS
PART I. DEPARTMENT OF STATE
Subpart A. PROFESSIONAL AND OCCUPATIONAL AFFAIRS
CHAPTER 9. STATE ARCHITECTS LICENSURE BOARD
GENERAL PROVISIONS § 9.2. Definitions.
The following words and terms, when used in this chapter, have the following meanings, unless the context clearly indicates otherwise:
ARE--Architect Registration Examination of the NCARB approved by the Board as the architecture licensure examination.
Accredited program--A program accredited by the National Architectural Accrediting Board to provide courses in architecture and related subjects and empowered to grant professional and academic degrees in architecture.
Construction management--The practice of planning, managing and coordinating a construction or development project for which the construction requires plans or specifications, or both, which are prepared by a licensed architect or a licensed engineer, and when the services performed are intended to serve the economic investment of all entities through the control of time, cost and quality.
Design/build project--A combined design and construction process whereby a specific entity executes a single contract document with an owner to provide the owner with both architectural and construction services.
* * * * * IDP--Intern Development Program of NCARB.
IDP council record--A detailed authenticated record of an individual's education, training and character maintained by NCARB.
* * * * * NCARB--National Council of Architectural Registration Boards, 1735 New York Avenue, NW, Suite 700, Washington, DC 20006.
* * * * *
AFFILIATION WITH NCARB § 9.11. NCARB membership.
The Board will maintain membership in [the] NCARB and the Middle Atlantic Regional Conference of NCARB. The necessary costs for the membership will be paid for under section 11 of the act (63 P. S. § 34.11).
(Editor's Note: The Board is proposing to delete §§ 9.12--9.17 as they currently appear in the Pennsylvania Code at pages 9-7--9-9 (serial pages (221095)--(221097)).
FUNCTIONS OF THE BOARD § 9.21. Board meetings.
In addition to the one regular meeting per year prescribed by law, the Board will hold additional meetings as may be necessary to conduct the business of the Board. The administrative assistant, in conjunction with the administrative office of the Bureau [of Professional and Occupational Affairs], will give notice of the time and place of each meeting at which formal action will be taken, under section 9 of the Sunshine Act (65 P. S. § [§ 271--286] 279). Meetings of the Board will be conducted in accordance with the Sunshine Act (65 P. S. §§ 271--286), and Roberts Rules of Order, Revised.
(Editor's Note: The Board is proposing to delete §§ 9.22--9.26 as they currently appear in the Pennsylvania Code at pages 9-9 and 9-10 (serial pages (221097) to (221098)).
§ 9.27. Inactive records.
Records of candidates for [registration] licensure that are inactive for [a period of] 5 years will be destroyed. A record will be considered inactive if a candidate [has taken the examination, has failed one or more parts of the examination, and has failed to retake one or more of the parts of the examination required for registration for a period of 5 years, or if a candidate had been declared eligible to sit for the examination and fails to sit for the examination for a period of 5 years] does not correct a deficiency in an application, or pass the entire examination within 5 years of notice from the Board of the deficiency or eligibility to take the examination.
(Editor's Note: The Board is proposing to delete §§ 9.28--9.35 as they currently appear in the Pennsylvania Code at pages 9-10--9-12 (serial pages (221098)--(221100)).
REGISTRATION BY EXAMINATION (Editor's Note: The Board is proposing to delete §§ 9.42, 9.43 and 9.45 as they currently appear in the Pennsylvania Code at pages 9-13 and 9-14 (serial pages (221101) and (221102)).
§ 9.46. Requirements for [candidates holding architectural degrees] examination eligibility.
[Subject to § 9.49a (relating to diversified training requirements):
(1)] A candidate for the examination [who holds a] shall have:
(1) A professional degree in architecture from an accredited [school of architecture shall have 3 years of diversified training experience in the offices of architects or the equivalent of the experience.
(2) A candidate for the examination who holds a Master's, Ph.D. or Doctor's degree in architecture from an accredited school of architecture, where the degree is the first professional architectural degree, shall have 3 years' training experience in the office of architects or the equivalent of the experience] program.
[(3) A candidate for the examination who holds a Master's, Ph.D. or Doctor's degree in architecture from an accredited school of architecture, where the degree is the second professional architectural degree, shall have 2 years experience in the offices of architects or the equivalent of the experience.]
(2) Three years of diversified training experience demonstrated by training requirements of the IDP.
[(4)] (3) An architectural degree candidate applying for first time registration [and meeting the requirements listed in paragraphs (1)--(3)] is required to pass the entire professional licensure examination of the Board within 5 years of the date of notice by the Board of eligibility to take the examination. The Board may waive this requirement upon proof of medical hardship or other extraordinary circumstances.
(Editor's Note: The Board is proposing to delete §§ 9.47 and 9.48 as they currently appear in the Pennsylvania Code at pages 9-15 and 9-16 (serial pages (221103) and (221104)).
§ 9.49a. Diversified training requirements.
[Effective for the 1992 and subsequent written licensure examinations, a candidate shall meet the]
(a) The Board has adopted NCARB Training Requirements for [Intern-Architect Development Program (IDP)] IDP as set forth in Appendix B to the 1985-1986 NCARB Circular of Information No. 1. The 1985-1986 NCARB Circular of Information No. 1 is available from: National Council of Architectural Registration Boards, 1735 New York Avenue, N. W., Suite 700, Washington, D.C. 20006.
(b) The candidate shall keep records of required diversified training experience in accordance with NCARB IDP requirements. The candidate is responsible for having NCARB transmit a certificate of completion of IDP as part of the candidate's application. An application which does not contain a certificate will not be reviewed.
§ 9.50. Reapplications.
Candidates required to file new applications under §§ 9.27 and 9.46(c) (relating to inactive records; and requirements for examination eligibility) shall meet all requirements of the act and regulations in effect at the time the new application is filed.
[REGISTRATION] LICENSURE BY RECIPROCITY § 9.61. General requirements.
[(a)] Registration may be granted to an applicant who holds a [certificate of registration or its equivalent as an architect] license to practice architecture in another state, territory or country where[, in the judgment of the Board,] the qualifications required for [registration] licensure are equal to the requirements for [registration] licensure in this Commonwealth [if the applicant is not under investigation in the other jurisdiction as a result of an alleged violation of statute, or the applicant, having been found guilty of a violation, has satisfied the penalty imposed] at the time of licensure in the original jurisdiction and the applicant is of good moral character. Possession of an NCARB Certificate is prima facie evidence that the individual meets the requirements of the Commonwealth.
[(b) The reciprocal registration may be granted by the Board under the following categories:
(1) Reciprocal--The applicant is registered in another state, territory or country and not holding a NCARB Certificate.
(2) NCARB--The applicant is registered in another state, territory or country and is certified by the NCARB.]
§ 9.62. Reciprocal [registration] licensure.
(a) An applicant [requesting] for reciprocal [registration may be required to] licensure shall submit [with the] a completed application [an official certification of registration in his home state, territory or country from the Secretary of the examining or registration board or other certifying official, stating on what basis registration was granted, whether by oral or written examination or exemption, and whether the registration is in] on forms provided by the Board containing:
(1) A letter of good standing [at the time of application for registration in this Commonwealth], or the equivalent from the licensing entity of the state or country where the architect currently practices.
[(b) An applicant requesting reciprocal registration may submit with the application complete information] (2) Information relative to training, education and experience as an employe or as a practicing principal[, as may be required by the Board].
(b) An applicant who has qualified for original licensure by having passed the 1992 ARE shall submit certification of having met the training requirements for IDP.
(c) [An architect registered] A candidate in another recognized and approved jurisdiction and seeking to practice within this Commonwealth who has not lawfully practiced architecture for [a period of] more than 10 years is required to submit a detailed summary of professional or business activities, or both, during the inactive period. It is within the discretion of the Board to determine whether the activities are substantially equivalent to the continuing practice of architecture.
(d) [An applicant requesting reciprocal registration may be required to appear before the Board for a personal interview. Submission of examples of the professional performance of the applicant may be required.] An applicant licensed on the basis of education, experience or examination not equal to the requirements of the Commonwealth shall submit satisfactory evidence of at least 10 years of continuous practice of architecture while holding a valid license as an architect. An applicant who has not taken a licensure examination shall provide the Board with a list of not less than three nor more than ten examples of architectural services designed and supervised by the applicant, giving location, name of owner, use and purpose, and date of completion.
(e) An applicant may be required to appear before the Board for a personal interview and may be requested to submit detailed information about training and experience, or both.
(Editor's Note: The Board is proposing to delete § 9.63 as it currently appears in the Pennsylvania Code at p. 9-18 (serial page (221106)).
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