NOTICES
INDEPENDENT REGULATORY REVIEW COMMISSION
Actions Taken by the Commission
[27 Pa.B. 2790] The Independent Regulatory Review Commission met publicly at 1 p.m., Thursday, May 22, 1997, and took the following actions:
Regulations Approved:
#1636 State Board of Physical Therapy #16A-377: Athletic Trainers; Class A & B Certification (amends 49 Pa. Code Chapter 40)
#1715 State Board of Pharmacy #16A-543: Facsimile Machines (amends 49 Pa. Code Chapter 27)
#1837 Department of State #16-14: Charitable Organizations (repeals 49 Pa. Code Chapters 51, 53 and 55)
#1745 Pennsylvania Public Utility Commission #57-172: Meter Tests (amends 52 Pa. Code § 59.21)
#1627 Pennsylvania Public Utility Commission #57-155: Interexchange Telecommunications Carriers (adds new provisions at 52 Pa. Code §§ 63.101--63.107)
Commissioners Present: John R. McGinley, Jr., Chairperson; Robert J. Harbison, III, Vice Chairperson; Alvin C. Bush; Arthur Coccodrilli
Public meeting held
May 22, 1997State Board of Physical Therapy--Athletic Trainers; Class A & B Certification; Doc. No. 16A-377
Order On May 26, 1995, the Independent Regulatory Review Commission (Commission) received this proposed regulation from the State Board of Physical Therapy (Board). This rulemaking would amend 49 Pa. Code Chapter 40. The authority for this regulation is contained in sections 3(a) and 10.2 of the Physical Therapy Practice Act (act) (63 P. S. §§ 1303(a) and 1310.2). The proposed regulation was published in the June 10, 1995 edition of the Pennsylvania Bulletin with a 30-day public comment period. The final-form regulation was submitted to the Commission on May 2, 1997.
The proposed amendments are designed to update the existing regulations to reflect current education and practical experience requirements for the completion of athletic training programs and to eliminate the issuance of new Class B certificates. The proposed amendments also amend definitions and specify the conditions under which an athletic trainer may provide services.
The Board is modifying the requirements for Class A certification by requiring that a candidate must fulfill either the requirements of an educational program meeting the requirements of the National Athletic Trainers Board of Certification (NATABOC) or a NATABOC internship program. In addition, a candidate must pass the certification examination administered by the NATABOC.
The Board is proposing to expand the definition of amateur athletic organization to include an organization which requires athletes injured prior to, during or after an organization-sponsored event to be examined by a physician. Under the proposed change, the organization must require either a preparticipation medical examination or must institute a policy requiring documentation of a physician examining athletes who are injured prior to, during or after an event. The expanded definition will allow more organizations to meet the requirements for classification as an amateur athletic organization.
The proposed changes to section 40.84 eliminate the requirements for Class B certification and provide that no new Class B certificates will be issued. The 40 previously issued Class B certificates will remain valid and can be renewed. Consequently, athletic trainers who currently hold Class B certification will not be required to obtain Class A certification.
The Board is also proposing to reorganize the listing of responsibilities for Class A and Class B trainers and to add section 40.88 which states that the athletic trainer may provide services only under the direction of a physician, podiatrist or dentist and only to participants in athletic programs which are conducted by an educational institution, professional athletic organization or amateur athletic organization. This section also provides that the athletic trainer, in agreement with the physician, podiatrist or dentist, must develop and maintain written policies and procedures which govern athletic training services.
In our comments on the proposed rulemaking, we made recommendations relating to definitions; application for certification; Class A and B certification; scope of duties; and physician direction. In September of last year, the Board submitted a final-form version of the regulation, but withdrew the regulation because we raised several concerns. These concerns have now been resolved by the Board.
The Senate Consumer Protection and Professional Licensure Committee approved the regulation on May 13, 1997. The House Professional Licensure Committee disapproved the regulation on May 14, 1997. The House Committee disapproved the regulation in response to procedural and substantive concerns raised by the Pennsylvania Physical Therapy Association (PPTA). We received a letter from PPTA recommending disapproval of the regulation because it claimed the Board had violated the procedures of the Regulatory Review Act and because it believed that the regulation unnecessarily expands the scope of athletic trainers.
The procedural objection raised by PPTA was based on the fact that the Board did not serve PPTA with a copy of the final-form regulation at the same time the Board served the standing committees and this Commission. PPTA asserted that it was disadvantaged because it was foreclosed from providing input to the Senate Committee prior to its vote on the final-form regulation.
While the Board's administrative breakdown is regrettable, the failure of an agency to comply with the notice requirements in the Regulatory Review Act is not one of our criteria, as provided in section 5(e) of the act, for determining if a regulation is in the public interest. The act does not grant the Commission the authority to enforce provisions of the act which apply to other agencies. The act also does not provide for any penalty to an agency which does not comply with the notice provisions. Consequently, we do not find that PPTA's procedural issue warrants disapproval of the regulation.
PPTA also raised substantive concerns, which we received and reviewed, that the regulation improperly expands the scope of services for athletic trainers. Specifically, PPTA believes the amendment to the definition of ''athletic trainer'' will allow an athletic trainer to set up an independent practice because it no longer requires the athletic trainer to provide service to an athletic program. PPTA believes this modification expands the scope of services beyond the expertise of an athletic trainer.
We disagree with the PPTA's assumption that the changes to the definition of ''athletic trainer'' will allow athletic trainers to perform any services beyond their training or expertise. The regulation clearly provides that an athletic trainer may only perform those duties contained in section 40.87 and only under the direction of a licensed physician, dentist or podiatrist. Therefore, regardless of whether an athletic trainer is working with a specific athletic organization or with one athlete, the trainer may only perform services under the direction of a physician, dentist or podiatrist and within the scope of duties contained in the regulation.
PPTA's other substantive concern relates to the deletion of the supervision requirements in section 40.87(a) along with the modification to section 40.88. PPTA claims that the result of these two amendments will affect the safety and welfare of the public by allowing an athletic trainer and physician to establish the standards, venue and scope of services to be performed.
Again, we disagree that the changes to the rulemaking will result in any harm to the public. The regulation clearly provides that the athletic trainer must work under the direction of a physician and provide services consistent with the scope of duties delineated in the regulation. It is within the professional judgment of the physician, dentist or podiatrist, as well as the athletic trainer, to assure that the services provided are within the scope of duties and the expertise of the athletic trainer.
We have reviewed this regulation and find it to be in the public interest. The Board has addressed the clarity issues we raised in September, and we do not have any outstanding concerns with the rulemaking.
Therefore, It Is Ordered That:
1. Regulation No. 16A-377 from the State Board of Physical Therapy, as submitted to the Commission on May 2, 1997, is approved; and
2. The Commission will transmit a copy of this Order to the Legislative Reference Bureau.
Commissioners Present: John R. McGinley, Jr., Chairperson; Robert J. Harbison, III, Vice Chairperson; Alvin C. Bush; Arthur Coccodrilli
Public meeting held
May 22, 1997State Board of Pharmacy--Facsimile Machines; Doc. No. 16A-543
Order On February 28, 1996, the Independent Regulatory Review Commission (Commission) received this proposed regulation from the State Board of Pharmacy (Board). This rulemaking would amend 49 Pa. Code Chapter 27. The authority for this regulation is contained in sections 4(j) and 6(k)(1) and (9) of the Pharmacy Act (act) (63 P. S. §§ 390-4(j) and 390-6(k)(1) and (9)). The proposed regulation was published in the March 9, 1996 Pennsylvania Bulletin with a 30-day public comment period. The final-form regulation was submitted to the Commission on May 2, 1997.
The Board has proposed a rulemaking to amend 49 Pa. Code Chapter 27 to define ''long-term care facility'' and establish the conditions under which a pharmacy may fill a prescription received on a facsimile (fax) machine.
The impetus behind this proposed regulation is the adoption of Federal Drug Enforcement Administration (DEA) regulations on May 19, 1994, at 21 CFR 1306.11(a) and 1306.21, which authorize the transmission of prescriptions for controlled substances by fax machines. Until the adoption of the DEA rulemaking, it was unlawful to transmit prescriptions for controlled substances by fax machine.
Standards adopted by the DEA prohibit a pharmacist from dispensing a prescription for a Schedule II controlled substance received on a fax machine prior to receiving and reviewing the original with two exceptions. One exception relates to a prescription transmitted for a Schedule II controlled narcotic substance for direct administration to a patient. The other exception permits a pharmacist to receive a prescription for a drug listed on Schedule II on a fax machine for a patient in a long-term care facility and use it as the original written prescription.
At the proposed stage, the House Professional Licensure Committee met on the proposed regulation and elected to take no position, but did suggest one clarifying amendment. Comments urging modifications on the proposed regulation were made by the Hospital Association of Pennsylvania (HAP); Children's Seashore Hospital; York Health System; Saint Vincent Health Center; Montgomery Hospital Medical Center; Pennsylvania Society of Health-System Pharmacists; Hamot Medical Center; Stadtlander's Pharmacy; and three registered pharmacists.
On May 13, 1997, the Senate Consumer Protection and Professional Licensure Committee voted to approve the final-form regulation. On May 14, 1997, the House Professional Licensure Committee voted to approve the final-form regulation.
This rulemaking will not impose any fiscal impact or additional paperwork requirements upon any entity. The rulemaking does not require the use of a fax machine in a pharmacy setting, rather it permits its use under certain circumstances. The Board believes that the use of a fax machine to transmit a drug order or prescription from a prescriber to a pharmacist may result in fewer errors than telephone transmission of a prescription or order because the pharmacist will have an exact copy of the prescription.
We have reviewed this regulation and find it to be in the public interest. In our comments, we raised six issues with the Board. One dealt with the reasonableness of applying these requirements to drug orders in hospitals, and the others raised issues of clarity or consistency between the proposed requirements and the act and DEA's regulations. In all but two cases, the Board made the changes that were suggested. For the two areas that the Board did not make changes (which were clarity issues), the explanation provided by the Board was sufficient to satisfy our concerns. These changes will facilitate the use of facsimile machines to transmit prescriptions and make the Commonwealth's regulations consistent with those of the DEA.
Therefore, It Is Ordered That:
1. Regulation No. 16A-543 from the State Board of Pharmacy, as submitted to the Commission on May 2, 1997, is approved; and
2. The Commission will transmit a copy of this Order to the Legislative Reference Bureau.
Commissioners Present: John R. McGinley, Jr., Chairperson; Robert J. Harbison, III, Vice Chairperson; Alvin C. Bush; Arthur Coccodrilli
Public meeting held
May 22, 1997Department of State--Charitable Organizations; Doc. No. 16-14
Order On April 22, 1997, the Independent Regulatory Review Commission (Commission) received this regulation from the Department of State (Department). This rulemaking would repeal 49 Pa. Code Chapters 51, 53 and 55. The authority for this regulation is contained in section 506 of The Administrative Code of 1929 (71 P. S. § 186) and section 4(3) of the Solicitation of Funds for Charitable Purposes Act (act) (10 P. S. § 162.4(3)). Notice of proposed rulemaking was omitted for this regulation; it will become effective upon publication in the Pennsylvania Bulletin.
This regulation will repeal outdated and obsolete regulations at 49 Pa. Code Chapters 51, 53, and 55. The existing regulations were promulgated under a 1963 statute. This statute was repealed by the Charitable Organizations Reform Act of April 30, 1986. The 1986 statute was repealed by the Solicitation of Funds for Charitable Purposes Act (Act 202 of 1990). In the preamble of the regulation, the Department asserts that publication of notice of proposed rulemaking is unnecessary under section 204(3) of the Commonwealth Documents Law (45 P. S. § 1204(3)). Public comment is unnecessary and under the circumstances impractical because this regulation is intended to merely delete outdated regulations which were promulgated under a prior statute which was repealed. Furthermore, all registrants affected by the repeal are given actual notice that Chapters 51, 53 and 55 have no bearing on filings made under the Act and are advised that filings made under the act should not be made utilizing these out-of-date chapters.
The regulation will have no negative impact on the Commonwealth or local governments. The Department will no longer need to expend resources rejecting filings based upon out-of-date regulations, and the public will realize a positive fiscal impact from not spending time and energy trying to comply with out-of-date regulations.
Senator Charles D. Lemmond, Jr., Chairperson of the Senate State Government Committee, notified the Commission in a letter dated May 16, 1997, that he gave members of his Committee an opportunity to review and comment on this regulation. Senator Lemmond wrote that he had received no comments regarding this regulation and recommended its adoption.
We have reviewed this regulation and find it to be in the public interest. It eliminates regulatory provisions that cause unnecessary confusion because they conflict with current law. Areas of conflict include the audit requirement at 49 Pa. Code § 53.4 and the fee schedule at 49 Pa. Code § 55.2. These existing rules require all charitable organizations, including those that receive gross contributions of $25,000 or less from the public, to file an annual balance sheet and income and expense statement audited by an independent public accountant and pay an annual fee to the Department. However, this is an option not a requirement for smaller charities under the act. Section 5(f) of the act states: ''An audit or review is optional for any charitable organization which receives contributions less than $25,000.'' Due to the confusion created by the existing regulation, certain charities are filing forms with the Department that are unnecessary.
We note that section 23 of the act requires the following:
The act of April 30, 1986 (P. L. 107, No. 36), known as the Charitable Organizations Reform Act, is repealed. Existing regulations promulgated pursuant to the Charitable Organization Reform Act shall remain in effect until amended in accordance with the provisions of this act.
The impact of this section of the statute on this regulation appears to be problematic since Chapters 51, 53 and 55 were promulgated under the 1963 Act. There were no amendments to these chapters promulgated under the Charitable Organization Reform Act of 1986. However, the Department has indicated that there are plans for a future rulemaking to improve the implementation of the act. We urge the Department to work diligently towards this goal.
Therefore, It Is Ordered That:
1. Regulation No. 16-14 from the Department of State, as submitted to the Commission on April 22, 1997, is approved; and
2. The Commission will transmit a copy of this Order to the Legislative Reference Bureau.
Commissioners Present: John R. McGinley, Jr., Chairperson; Robert J. Harbison, III, Vice Chairperson; Alvin C. Bush; Arthur Coccodrilli
Public meeting held
May 22, 1997Pennsylvania Public Utility Commission--Meter Tests; Doc. No. 57-172
Order On May 30, 1996, the Independent Regulatory Review Commission (Commission) received this proposed regulation from the Pennsylvania Public Utility Commission (PUC). This rulemaking would amend 52 Pa. Code § 59.21 which addresses testing of gas meters for accuracy and safety. The authority for this regulation is 66 Pa.C.S. § 1504(4) which provides the PUC with the authority to: ''Prescribe or approve reasonable rules, regulations, specifications and standards to secure the accuracy of all meters and appliances for measurement.'' The proposed regulation was published in the Pennsylvania Bulletin with a 30-day public comment period. The final-form regulation was submitted to the Commission on May 5, 1997.
Every year a portion of the gas utility's meters are required to be tested to ensure accuracy and safety. The existing regulations provide two options for testing of meters: a standard test schedule and an extended test schedule. The standard test schedule simply requires all meters to be tested at specific intervals based upon the class of meter. The extended test schedule specifies the time interval for the next test for the meters tested that year based upon the accuracy of the meters tested in recent years.
The Pennsylvania Gas Association (PGA) commented that mounting evidence indicates meters typically operate at very high levels of accuracy for periods far beyond the existing regulation's maximum test period. A statistical sampling pilot program used by Columbia Gas of Pennsylvania, Inc. and a variable interval pilot program used by National Fuel Gas Distribution Corporation support this claim. PGA commented that each of these programs was effective and successful, both in maintaining high levels of meter accuracy and in realizing savings in operating expenses. Gas utilities filed three petitions with the PUC requesting changes to meter testing requirements to recognize advances in meter reliability and to make minor clarifications to the regulations. The PUC agreed with the gas utilities' proposals and developed this proposed rulemaking.
The PUC is proposing two significant amendments to the existing regulation. First, the PUC is proposing to modify the extended test schedule for Class A meters by adding 4 years to the permitted test periods. Second, the PUC is proposing to add a statistical sampling program and a variable interval testing program for meter testing.
The PUC proposal to modify the extended test schedule for Class A meters by adding 4 years to the permitted test periods is significant because it will affect residential meters. Residential meters comprise the largest category of meters a gas utility owns. Assuming that a utility's meters qualify for the extended test schedule, a utility could reduce the annual number of tests by as much as 20%.
The second PUC proposal adds options for a statistical sampling program and a variable interval testing program for meter testing. These programs are similar to protocols suggested by the American National Standards Institute. The most important difference between the existing regulations and these new programs is that the existing regulations require all meters to be tested whereas the new programs would require only a representative sample of meters to be tested. The PUC also proposes to fix a typographical error in the existing regulations and make minor clarification amendments.
The only comments received on the proposed rulemaking were from PGA. PGA provided background information and expressed support for the regulation. PGA's comments outlined potential savings of 20% for the proposed 4-year extension of the extended meter testing schedule and even larger savings for the statistical sampling and variable interval programs.
The Senate Consumer Protection and Professional Licensure Committee voted to approve this final-form regulation on May 13, 1997.
We have reviewed this regulation and find it to be in the public interest. We commented on several clarity issues and procedural ambiguities. There were several meetings held and numerous drafts circulated between PUC staff, PGA and the Commission after our comments were submitted. As a result, all of the issues we raised have been resolved.
The regulation will result in cost savings for both the gas utilities and their customers because fewer meters will have to be tested each year. Costs will not be imposed or increased in the long term as a result of this regulation because the regulation adds options for meter testing without foreclosing existing testing options. We are convinced that metering technology has improved and longer intervals between testing will not pose a safety threat or increase the chances that a customer will be charged inappropriately due to a faulty meter.
Therefore, It Is Ordered That:
1. Regulation No. 57-172 from the Pennsylvania Public Utility Commission, as submitted to the Commission on May 5, 1997, is approved; and
2. The Commission will transmit a copy of this Order to the Legislative Reference Bureau.
Commissioners Present: John R. McGinley, Jr., Chairperson; Robert J. Harbison, III, Vice Chairperson; Alvin C. Bush; Arthur Coccodrilli
Public meeting held
May 22, 1997Pennsylvania Public Utility Commission--Interexchange Telecommunication Carriers; Doc. No. 57-155
Order On April 3, 1995, the Independent Regulatory Review Commission (Commission) received this proposed regulation from the Pennsylvania Public Utility Commission (PUC). This rulemaking would add new provisions at 52 Pa. Code §§ 63.101--63.107. The authority for this regulation is contained in sections 501, 3008 and 3009(b)(3), (4) and (d) of the Public Utility Code (code) (66 Pa.C.S. §§ 501, 3008 and 3009(b)(3), (4) and (d)). The proposed regulation was published in the April 15, 1995 Pennsylvania Bulletin with a 30-day public comment period. The final-form regulation was submitted to the Commission on May 5, 1997.
This regulation is designed to implement new procedures related to the regulation of interexchange carriers under Chapter 30 of the code. Chapter 30 was Act 67 of 1993 (act). This comprehensive piece of legislation allows the PUC to determine what is a competitive or noncompetitive telecommunications service and provides for the deregulation of competitive services. The subject of this regulation is interexchange carriers or long distance companies such as MCI, Sprint or AT&T. Although the act deregulates the competitive service provided by interexchange carriers, it also authorizes the PUC to regulate noncompetitive services provided by these companies as well as monitor the interexchange carriers' competitive services.
The regulation contains provisions requiring the filing of information with the PUC when an interexchange carrier modifies its rates for existing competitive services. Before the act, interexchange carriers had to obtain the PUC's approval of rate modifications. An interexchange carrier must now introduce a new competitive service through the filing of a tariff supplement and supporting documentation with the PUC. Upon the filing of such information, the PUC staff has 14 days to review it and issue a report allowing the new service to be initiated or explaining why it should not be permitted. In addition, the regulation outlines procedures for noncompetitive services, reclassification of competitive and noncompetitive services, and annual reporting by interexchange carriers.
The PUC claims that the regulation should reduce its own costs in regulating interexchange carriers as well as the regulatory costs of interexchange carriers. This regulation will have little or no impact on the Commonwealth, local governments or the private sector.
On the proposed rulemaking, AT&T and MCI Telecommunications Corporation (MCI) filed comments. In addition, former Representatives Kathrynann W. Durham and David R. Wright, the Majority and Minority Chairpersons of the House Consumer Affairs Committee in 1995, both filed comments on the proposed rulemaking.
After submittal of the final-form version of the regulation, the Senate Consumer Protection and Professional Licensure Committee voted to approve this regulation on May 13, 1997.
We have reviewed this regulation and find it to be in the public interest. The PUC made a number of modifications to the final-form regulation in response to the concerns expressed by commentators and this Commission. The major issue was the PUC's regulation of interexchange services to aggregator telephones. This issue centered on section 3008(a) of the code that lists ''interexchange service to aggregator telephones'' as a noncompetitive service. Aggregator telephones according to section 3002 of the code are telephones that are ''made available to the transient public, customers or patrons, including, but not limited to, coin telephones, credit card telephones and telephones located in hotels, motels, hospitals and universities.'' AT&T, MCI and former Representatives Durham and Wright contended that credit and debit card services provided by facilities-based companies such as AT&T and MCI exist in a highly competitive market and should not be regulated by the PUC. In our comments on the proposed regulation, we agreed with these commentators in part and suggested that the PUC exercise its statutory authority to reclassify these services provided by facilities-based companies as competitive and allow them to be deregulated under Chapter 30 of the code.
Although the PUC will continue to regulate certain long distance services as noncompetitive, it took a step forward in pronouncing that prepaid debit cards are a competitive service. Long distance providers will only be required to file prepaid debit card rates with the PUC for informational purposes. The PUC continues to regulate other interexchange services to aggregator telephones provided by facilities-based companies as noncompetitive under Chapter 30 of the code. A wide variety of companies are entering the interexchange or long distance marketplace including local exchange telephone providers, facilities-based providers, resellers and companies that offer services through their own facilities (for example, facilities-based) and as resellers. Considering the growing complexity of the long distance market, the task of delineating between the different types of long distance services provided to aggregator telephones becomes a greater challenge. As the distinction between facilities-based providers and resellers becomes increasingly blurred, a decision by the PUC to continue its regulation of services provided by resellers while simultaneously deregulating facilities-based services would be practically unenforceable.
Therefore, It Is Ordered That:
1. Regulation No. 57-155 from the Pennsylvania Public Utility Commission, as submitted to the Commission on May 5, 1997, is approved; and
2. The Commission will transmit a copy of this Order to the Legislative Reference Bureau.
JOHN R. MCGINLEY, Jr.,
Chairperson
[Pa.B. Doc. No. 97-921. Filed for public inspection June 6, 1997, 9:00 a.m.]
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