NOTICES
INDEPENDENT REGULATORY REVIEW COMMISSION
Notice of Comments Issued
[29 Pa.B. 3040] Section 5(g) of the Regulatory Review Act (act) (71 P. S. § 745.5(g)) provides that the designated standing committees may issue comments within 20 days of the close of the public comment period, and the Independent Regulatory Review Commission (Commission) may issue comments within 10 days of the close of the committee comment period. The Commission comments are based upon the criteria contained in section 5a(h) and (i) of the act (75 P. S. § 745.5a(h) and (i)).
The Commission has issued comments on the following proposed regulations. The agency must consider these comments in preparing the final-form regulations. The final-form regulations must be submitted by the dates indicated.
Final-Form Submission Reg No. Agency/Title Issued Deadline 16A-655 State Board of Physical
Therapy Fees5/27/99 4/26/01 29 Pa.B. 1615 (March 27, 1999) 16A-5310 State Board of Osteo pathic Medicine Ap plication Fees 5/27/99 4/26/01 29 Pa.B. 1613 (March 27, 1999) 106-4 Environmental Hearing Board Practice and Procedure 5/28/99 4/28/01 29 Pa.B. 1074 (February 27, 1999)
State Board of Physical Therapy
Regulation No. 16A-655
Fees
May 27, 1999We have reviewed this proposed regulation from the State Board of Physical Therapy (Board) and submit for consideration the following objections and recommendations. Section 5.1(h) and (i) of the Regulatory Review Act (71 P. S. § 745.5a(h) and (i)) specify the criteria the Commission must employ to determine whether a regulation is in the public interest. In applying these criteria, our Comments address issues that relate to fiscal impact, consistency and clarity. We recommend that these Comments be carefully considered as you prepare the final-form regulation.
1. Section 40.5. Fees--Fiscal Impact, Consistency and Clarity.
Administrative overhead costs
In the proposed regulation's fee report forms, there are significant differences in the costs covered by different fees except for ''Administrative Overhead'' costs. According to staff at the Department of State and its Bureau of Professional and Occupational Affairs (BPOA), the allocated share of overhead cost for each fee category is calculated by dividing total overhead costs by the number of active licensees. This methodology for overhead cost allocation is not unreasonable and has been consistently applied. On the other hand, the staff cost allocations are based on estimates of the actual time BPOA staff spends performing the tasks related to each fee.
For overhead cost allocations, there appears to be no relationship to the services covered by the fees or frequency of fee payments. Therefore, there is no indication that the fees will recover actual or projected overhead costs. In addition, the allocated costs are based on past expenditures rather than estimates or projections of future expenditures. Hence, there is no certainty that the fees' ''projected revenues will meet or exceed projected expenditures'' under section 8(b) of the Physical Therapy Practice Act (63 P. S. § 1308(b)).
We question the use of a constant overhead cost allocation that appears to be unrelated to the actual costs of activities covered by different fees. Even though this process was used to determine other fees, why should BPOA maintain this approach? The Board and BPOA should specifically identify the overhead costs, or portion of the total overhead, to be recouped by these fees, and review their methodology for allocating these overhead costs. Is it the Board's goal to allocate all overhead costs by category to each fee? If so, we do not believe the current allocation formula gives the desired result.
Board duties for certification and verification
The House Professional Licensure Committee requested additional information from the Board in two areas. First, it questioned the Board's role in the certification of scores, licensure, certification and registration. In addition, it noted that the description of Board staff functions in the fee report forms for certification and verification fees were the same. However, there was a significant difference in the staff time and costs for these fees. Staff time for certification equaled 45 minutes at a cost of $15.23. Staff time for verification was 4.8 minutes at a cost of $1.62.
Why does the Board certify scores? What is the difference between certification and verification? How much work is required to provide these services? The Board should explain in detail the answers to these questions when it submits the final-form version of this regulation.
State Board of Osteopathic Medicine
Regulation No. 16A-5310
Application Fees
May 27, 1999We have reviewed this proposed regulation from the State Board of Osteopathic Medicine (Board) and submit for consideration the following objections and recommendations. Section 5.1(h) and (i) of the Regulatory Review Act (71 P. S. § 745.5a(h) and (i)) specify the criteria the Commission must employ to determine whether a regulation is in the public interest. In applying these criteria, our Comments address issues that relate to fiscal impact and clarity. We recommend that these Comments be carefully considered as you prepare the final-form regulation.
Sections 25.231 and 25.503. Schedule of Fees; and Fees--Fiscal impact and Clarity.
Administrative overhead costs
In the proposed regulation's fee report forms, there are significant differences in the costs covered by different fees except for ''Administrative Overhead'' costs. According to staff at the Department of State and its Bureau of Professional and Occupational Affairs (BPOA), the allocated share of overhead cost for each fee category is calculated by dividing total overhead costs by the number of active licensees. This methodology for overhead cost allocation is not unreasonable and has been consistently applied. On the other hand, the staff cost allocations are based on estimates of the actual time BPOA staff spends performing the tasks related to each fee.
For overhead cost allocations, there appears to be no relationship to the services covered by the fees or frequency of fee payments. Therefore, there is no indication that the fees will recover actual or projected overhead costs. In addition, the allocated costs are based on past expenditures rather than estimates or projections of future expenditures. Hence, there is no certainty that the fees' ''projected revenues will meet or exceed projected expenditures'' under section 13.1(a) of the Osteopathic Medical Practice Act (63 P. S. § 271.13a(a)).
We question the use of a constant overhead cost allocation that appears to be unrelated to the actual costs of activities covered by different fees. Even though this process was used to determine other fees, why should BPOA maintain this approach? The Board and BPOA should specifically identify the overhead costs, or portion of the total overhead, to be recouped by these fees, and review their methodology for allocating these overhead costs. Is it the Board's goal to allocate all overhead costs by category to each fee? If so, we do not believe the current allocation formula gives the desired result.
Inconsistency in fee title
In the Regulatory Analysis Form, question eight states that ''. . . certification of any license, grades or hours . . .'' fee will be adjusted. In the Fee Report Form, the same fee is entitled, ''Certification of Scores or Hours.'' And in the proposed rulemaking, the fee is entitled, ''Certification of any License, Examination Grades, or Hours.'' This inconsistency needs to be clarified in the preamble to the Board's final-form rulemaking.
Similarity in tasks
The Board's staff time and administrative costs for the Verification of License or Temporary Permit as outlined in the Fee Report Form are 0.08/hour and $1.62, respectively. The staff time and administrative costs for the Certification of License, Scores, or Hours outlined in the Fee Report Form are 0.75/hour and $15.23, respectively. Yet the administrative functions the Board staff performs for both are identical. The Board should explain the cost and time differentials when it submits its final-form rulemaking.
Environmental Hearing Board Regulation No. 106-4
Practice and Procedure
May 28, 1999We have reviewed these proposed regulations from the Environmental Hearing Board (Board) and submit for consideration the following objections and recommendations. Section 5.1(h) and (i) of the Regulatory Review Act (71 P. S. § 745.5a(h) and (i)) specify the criteria the Commission must employ to determine whether a regulation is in the public interest. In applying these criteria, our Comments address issues that relate to reasonableness and clarity. We recommend that these Comments be carefully considered as you prepare the final-form regulations.
1. Section 1021.31(a). Service by the Board--Clarity.
Subsection (a) provides that service of orders, notices and other documents is to be made, by mail or in person, upon the person designated in the notice of appearance. The Board proposes to have this rule supersede, rather than supplement, the General Rules of Administrative Practice and Procedure, 1 Pa. Code § 33.31, relating to service by the agency. This change leaves unanswered the question of whom to serve if a party has not yet entered an appearance.
The Board advises that this problem arises only in one specific type of case involving a permittee. In that type of case, the permittee's name and address is attached to the complaint. Service may then be made on the permittee, or on the permittee's attorney. To ensure that this process is clear, the Board's rules should continue to supplement, and not supersede, 1 Pa. Code § 33.31. In the alternative, the Board should revise § 1021.31 to indicate that service should be made on a permittee before the permittee enters an appearance.
2. Section 1021.51. Commencement, forms and content--Clarity.
Subsection (f) requires an appellant to prepay a penalty in an appeal from an assessment of a civil penalty. This section should be revised to clearly indicate that the prepayment requirement only applies when required by statute. The following amendment will accomplish this change:
''Where the appeal is from an assessment of a civil penalty [that] for which the statute requires an appellant to prepay the penalty or post a bond, . . .''
3. Section 1021.56. Complaints filed by the Department--Reasonableness and Clarity.
In subsection (b), the Board has replaced notice to plead with notice of right to respond. Given the large number of pro se defendants who appear before the Board, we question whether the change in language will give adequate notice of the consequences of a failure to respond, or the failure to specifically deny factual allegations.
The Board should revise the regulation to provide that complaints will contain a notice advising defendants of these consequences, or explain in its response document how defendants are advised of these consequences through other means (pamphlets, and the like).
4. Section 1021.57. Answers to Complaints filed by the Department--Reasonableness and Clarity.
In § 1021.57, the Board has proposed a new rule pertaining to answers. This rule, which will replace § 1021.66, will apply to all proceedings which must be instituted by complaint. Although § 1021.66 will be deleted, most of its substantive provisions will be incorporated into the new § 1021.57. However, certain differences between the new and deleted provisions have created confusion.
First, § 1021.57(b) combines in one provision the following two distinct directives: (1) all defenses, legal and factual, should be combined in a single pleading; and (2) answers should be written and complete, should admit or deny specifically each allegation, and should clearly state the facts and legal arguments relied upon. This provision incorporates the substance of Subsections (b) and (d) of § 1021.66. Combining these two provisions into a single provision results in diminished clarity. Therefore, § 1021.57(b) should be divided into two lettered paragraphs, modeled after subsections (b) and (d) of § 1021.66.
Second, § 1021.57 leaves doubt as to whether a party must reply to new matter and preliminary objections. Section 1021.57(b) contains the same requirement as § 1021.66(c), that preliminary objections must be included in answers and may not be filed separately. However, § 1021.66(e), which requires the filing of a reply to new matter and answer to preliminary objections, was not carried over to § 1021.57. This has resulted in confusion as to whether: (1) replies to new matter and answers to preliminary objections are still required; and (2) the same ''deemed admitted'' rule applies to a failure to file a reply or answer. The regulation should be amended to resolve these questions.
Third, § 1021.57(c) leaves unclear how facts may be deemed admitted against a party. This provision was modeled after § 1021.66(c), with one important difference. Section 1021.66(c) provides that a defendant failing to file an answer within the prescribed time shall be deemed in default and, upon motion made, all relevant facts stated in the complaint for civil penalties may be deemed admitted (emphasis ours). Section 1021.57(c) leaves out the phrase ''upon motion made.'' The absence of this language gives rise to the question whether all relevant facts may be deemed admitted against a party even if its opponent does not make a motion to that effect.
Under § 1021.70(h), motions may be made orally during the course of a hearing, and do not have to be preliminarily filed in writing. In the interest of fairness, and given the ease with which a motion may be made, the requirement for a motion should be retained in § 1021.57(c).
5. Section 1020.70. General--Clarity.
The new language proposed to be added to § 1020.70(e) is inconsistent with both §§ 1020.70(f) and 1021.73(b). The new language in subsection (e) would presumably apply to all motions, including motions for summary judgment and motions for partial summary judgment. It would provide that material facts set forth in a motion that are not denied may be deemed admitted for the purposes of deciding the motion. Subsection (f), however, does not apply to motions for summary judgment or motions for partial summary judgment. It provides that, for the purposes of the relief sought, the Board will deem a party's failure to respond to a motion to be an admission of all properly pleaded facts contained in the motion. Section 1021.73(c), which incorporates by reference Pa.R.C.P. Rule 1035.3(d), provides that summary judgment may be entered against a party who does not respond.
This inconsistency gives rise to several questions. First, with respect to motions for summary judgment and motions for partial summary judgment, it is not clear whether failure to respond at all, or failure to specifically deny factual allegations, will result in an order granting summary judgment. Compare the proposed change to § 1020.70(e) with § 1021.73(b) and Pa.R.C.P. Rule 1035.3(d). If a failure to respond at all results in this penalty, what consequences will result from a failure to specifically deny factual allegations?
Second, with respect to motions that are not dispositive, it is not clear why the Board would differentiate between the purpose of deciding the motion in subsection (e) and the purpose of the relief sought in subsection (f). Presumably, if a motion were decided in the mover's favor, the relief sought would be granted. Third, subsection (e) does not explain whether facts that are not specifically denied will be deemed admitted upon motion of the opposing party or the Board's own motion, or whether the Board may deem facts admitted even if a motion to that effect is not made. The Board should revise the language in subsection (e) to resolve these inconsistencies.
6. Section 1021.80. Consolidation--Clarity.
Section 1021.80 provides that the Board, upon motion made, may consolidate proceedings involving a common question of law or fact. The proposed change to subsection (b) indicates that § 1021.80 will supersede, rather than supplement, the Rules of Administrative Practice and Procedure, 1 Pa. Code § 35.45. This change would seem to prevent the Board from issuing orders necessary to have the proceedings conducted in an efficient manner. Therefore, the Board should retain ''supplements'' and not replace it with ''supersedes.''
The Board has explained that this authority is reserved under the newly proposed § 1021.4, which is patterned after the Pa.R.C.P. Rule 126. So that this will be made apparent, the Board should cross-reference § 1021.4 in § 1021.80.
7. Section 1021.104. Transcript--Reasonableness and Clarity.
Section 1021.104 sets forth the requirement for transcripts. In subsection (d), the Board proposes to have this section supersede, rather than supplement, the General Rules of Administrative Practice and Procedure, 1 Pa. Code §§ 35.131--35.133. Superseding 1 Pa. Code § 35.132 will have the effect of eliminating the procedure for correcting errors in transcripts. Therefore, the Board should not replace ''supplements'' with ''supersedes.'' In the alternative, the Board should revise § 1021.104 to indicate how errors in transcripts can be corrected.
8. Section 1021.125. Sanctions--Clarity.
Section 1021.125 provides that the Board may impose sanctions for failure to abide by a Board order or practice and procedure rule. With respect to the type of sanctions that may be imposed, the Board proposes to delete the phrase ''as are permitted in similar situations by Pa.R.C.P. for practice before the court of common pleas,'' and replace that phrase with ''appropriate.'' By deleting the reference to the Pa.R.C.P., the Board has not provided any means through which a party may be put on notice as to what sanctions the Board may find ''appropriate.''
The Board has explained that it intends to be guided by Pa.R.C.P. Rule 4019 (relating to production of documents and things; sanctions), and will state its intention in the Preamble to the final-form regulations. However, the Board does not want to include a cross-reference to Rule 4019 in the regulation, because this rule has limited application to discovery practice.
Because the Preamble is not codified, the mention of the Board's intention therein is not sufficient to place parties on notice as to how the Board's discretion will be limited. Therefore, the cross-reference to Rule 4019 should be included, with clarification that it will apply generally to proceedings before the Board. In the alternative, the Board should list in § 1021.125 the sanctions set forth in Rule 4019 that it will apply where circumstances warrant.
9. Miscellaneous--Clarity.
The following revisions will improve the clarity of the regulation:
1. Section 1021.35(a)(2). Insert the word ''than'' between ''other'' and ''motions.''
2. Sections 1021.17, 1021.107 and 1021.161. Do not place substantive provisions in ''Note'' paragraphs, which are neither numbered nor lettered. To avoid confusion, use the standard format for regulations established by the Joint Committee on Documents, 1 Pa. Code, § 7.6 and Chapter 9.
3. Section 1021.162. Replace ''In the event'' with ''If.'' Also, divide the first and second sentences into subsections (a) and (b).
JOHN R. MCGINLEY, Jr.,
Chairperson
[Pa.B. Doc. No. 99-950. Filed for public inspection June 11, 1999, 9:00 a.m.]
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