PROPOSED RULEMAKING
STATE BOARD OF PHYSICAL THERAPY
[49 PA. CODE CH. 40]
Certificate of Authorization
[33 Pa.B. 5742] The State Board of Physical Therapy (Board) proposes to amend § 40.5 (relating to fees) and add §§ 40.61--40.63 (relating to certificate of authorization to practice physical therapy without a referral; professional liability insurance; and continuing education) to read as set forth in Annex A.
Effective Date
The proposed rulemaking will be effective on final-form publication in the Pennsylvania Bulletin.
Statutory Authority
The proposed rulemaking is authorized under section 3 of the Physical Therapy Practice Act (act) (63 P. S. § 1303) and section 812.1 of The Administrative Code of 1929 (71 P. S. § 279.3a). The act of February 21, 2002 (P. L. 234, No. 6) (Act 6) (63 P. S. § 1309) amended the act to permit a physical therapist to practice physical therapy without obtaining a referral from a physician if the physical therapist qualifies for and obtains from the Board a certificate of authorization to practice physical therapy without a referral. The proposed rulemaking implements Act 6.
Background and Purpose
The proposed rulemaking provides for the issuance of a certificate of authorization by the Board under Act 6. Theproposed rulemaking establishes a fee for the issuance of a certificate and otherwise establishes the requirements and conditions for obtaining and practicing under a certificate. The following is a description of the proposed amendments.
Section 40.5--Section 8(b) of the act (63 P. S. § 1308(b)) requires the Board to set all fees by regulation. Expenses related to applications or services which are provided directly to individual licensees or applicants are excluded from revenues and are funded through fees. The cost of providing the service forms the basis for the fee.
It was determined that upon the implementation of Act 6, approximately 5,500 applications would be submitted to the Board for initial certificates of authorization to practice physical therapy without a physician's referral with approximately 1,300 new applications being submitted each biennial cycle thereafter. The analysis undertaken by the Budget Office of the Department of State establishes a fee of $30 for the initial certificate. It was also estimated that approximately 6,800 biennial renewal applications would be submitted each biennium and that a biennial renewal fee of $37 should be established. The Board plans on monitoring the numbers of applications received and adjusting these fees by further regulation as necessary.
Section 40.61--Section 40.61 reflects the requirements and language of Act 6 pertaining to the eligibility of a licensee to obtain a certificate. Act 6 requires that an applicant must be licensed in this Commonwealth as a physical therapist. Therefore, this requirement is in § 40.61(a)(1). Also, Act 6 requires that the licensee must have either passed an examination for licensure which included testing on the appropriate evaluative procedures to treat a person without a referral or have passed an examination for licensure prior to 1990 and successfully completed a course approved by the Board on the appropriate evaluative procedures to treat a person without a referral. In implementing these statutory provisions, the Board notes that its recognized examination is the National Physical Therapy Examination (NPTE). After January 1, 1990, the NPTE included testing on the appropriate evaluative procedures to treat a patient without a referral. Prior to January 1, 1990, the NPTE did not include this testing. Therefore, § 40.61(a)(2)(ii) requires that a licensee who passed the NPTE prior to January 1, 1990, must have successfully completed within the 2 years preceding application a Board-approved course consisting of at least 10 hours on the appropriate evaluative and screening procedures to determine the need for further examination or consultation by a physician, dentist or podiatrist prior to initiating treatment without a referral. This subsection would require the Board to maintain a list of currently approved courses meeting the Board's criteria. The Board believes that requiring at least 10 hours within 2 years preceding application is the minimum number of hours acceptable to assure that licensees are fresh and knowledgeable in this area to practice safely.
In addition to the educational requirement of Act 6, the statute requires that the licensees have practiced physical therapy in this Commonwealth or in a reciprocal state in the delivery of patient care on a continuous basis for at least 2 years immediately preceding application for the certificate or through the combination of 2 years practice in this Commonwealth and a reciprocal state. These requirements are in § 40.61(a)(3).
Subsection (b) would define ''continuous practice'' as a minimum of 200 hours each year in the delivery of direct patient care. The Board has determined that 200 hours each year represents approximately 10% of a physical therapist's annual practice time. Subsection (c) reflects the requirement in the act that certificates of authorization be displayed in a conspicuous manner to the public.
Act 6 requires that only a licensee holding a certificate of authorization may practice without the required referral from a physician. Subsection (d) clarifies that a physical therapist who holds a certificate cannot delegate the care of a patient to another physical therapist who does not have a certificate.
Section 40.62--Section 9(b)(4) of the act (63 P. S. § 1309(b)(4)) was amended by Act 6 to require that a certificate holder have professional liability insurance in the minimum amounts required to be maintained by physicians under the Health Care Services Malpractice Act (40 P. S. §§ 1301.101--1301.1006). The Board notes, in implementing this statutory provision, that the Health Care Services Malpractice Act was subsequently replaced by the Medical Care Availability and Reduction of Error (MCARE) Act (MCARE Act) (40 P. S. §§ 1303.101--1303.5108). Specifically, section 711 of the MCARE Act (40 P. S. § 1303.711) sets forth the insurance requirements. Accordingly, the Board references section 711 of the MCARE Act in § 40.62(a).
Act 6 sets forth the requirement that a licensee shall notify the Board within 30 days of the licensee's failure to be covered by the required insurance. Also, Act 6 provides for the automatic suspension of a certificate upon the failure to be covered by the required insurance and that the certificate not be restored until submission to the Board of satisfactory evidence that the licensee has the required professional liability insurance. Section 40.62(b) and (c) mirrors these statutory provisions.
Act 6 amended section 9(b)(iii) of the act to set forth the kinds of insurance satisfactory for compliance with this requirement. Section 40.62(c) reflects these options. With respect to self-insurance, section 9(b)(iv) of the act requires that the Board adopt by regulation standards and procedures established by the Insurance Commissioner for self-insurance. This has been accomplished through § 40.62(c)(1) of the proposed rulemaking.
Section 40.63--Act 6 requires that for a licensee to biennially renew a certificate, the licensee must complete, within the biennial period, at least 20 hours of continuing education regarding keeping the certificate holder apprised of advancements and new developments in the practice of the physical therapy profession. At least 10 of the 20 hours are required to be in appropriate evaluative procedures to treat a person without a referral. Act 6 further requires that the Board approve continuing education programs and program providers in accordance with standards and criteria approved by the Board by regulation including any fees necessary to implement these provisions.
Section 40.63 implements these provisions of Act 6. First, the Board defines appropriate terms used in this section. In particular, the term ''contact hour'' would be defined as ''a unit of measure equaling 60 minutes of participation in an approved continuing education course or program.''
Subsections (b) and (c) mirror the continuing education requirements of Act 6. Subsection (c) further provides for the keeping of continuing education records for 4 years and for the auditing of continuing education records by the Board.
Subsection (d) establishes sponsors and acceptable courses and programs. Section 40.63(d)(1) clarifies that it is the responsibility of the certificate holder to ascertain the approval status of the sponsor before taking a course. Paragraph (2) provides that even if a sponsor is approved, a course may be rejected by the Board if the course is outside the scope of practice of physical therapy. Also, this provision mirrors the act in that credit will not be given for courses in office management or practice building. Paragraph (2) provided that a certificate holder will be notified of a rejected course in writing along with the reason for the rejection.
Section 40.63(d)(3) sets forth the process for applying for approval as a sponsor of continuing education and the criteria for approval. Under § 40.63(e), home study courses would be authorized if given by approved sponsors. Subsection (f) reflects the statutory provision that the continuing education requirements do not apply until after the first renewal of the certificate of authorization.
Subsection (g) required that for a certificate to be reinstated or reactivated, continuing education compliance must be substantiated. Subsection (h) provides for waivers of the continuing education requirement due to illness or hardship as set forth in section 9(c)(2) of the act.
Fiscal Impact and Paperwork Requirements
The proposed rulemaking should have no fiscal impact and will not impose additional paperwork on the private sector, the general public and the Commonwealth and its political subdivisions.
Regulatory Review
Under section 5(a) of the Regulatory Review Act (71 P. S. § 745.5(a)), on November 12, 2003, the Board submitted a copy of this proposed rulemaking and a copy of a Regulatory Analysis Form to the Independent Regulatory Review Commission (IRRC) and to the Chairpersons of the Senate Consumer Protection and Professional Licensure Committee and the House Professional Licensure Committee. A copy of this material is available to the public upon request.
Under section 5(g) of the Regulatory Review Act, IRRC may convey any comments, recommendations or objections to the proposed rulemaking within 30 days of the close of the public comment period. The comments, recommendations or objections shall specify the regulatory review criteria which have not been met. The Regulatory Review Act specifies detailed procedures for review, prior to final publication of the rulemaking, by the Board, the General Assembly and the Governor of comments, recommendations or objections raised.
Public Comment
Interested persons are invited to submit written comments, suggestions or objections regarding the proposed rulemaking to Robert Kline, Administrative Assistant, State Board of Physical Therapy, P. O. Box 2649, Harrisburg, PA 17105-2649 within 30 days of publication of this proposed rulemaking in the Pennsylvania Bulletin. Reference No. 16A-651, Practice of Physical Therapy without Referral, when submitting comments.
JAMES J. IRRGANG,
ChairpersonFiscal Note: 16A-6510. 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 40. STATE BOARD OF PHYSICAL THERAPY
Subchapter A. PHYSICAL THERAPISTS
GENERAL PROVISIONS § 40.5. Fees.
The following fees are charged by the Board:
Physical therapist:
* * * * *
Application for Certificate to Practice Physical Therapy without a referral $30 Biennial renewal of Certificate to Practice Physical Therapy without a referral $37 Application for approval of continuing education provider or program (per each course offered) $40 * * * * * (Editor's Note: Sections 40.61--40.63 are new. They are printed in regular type to enhance readability.)
PRACTICE WITHOUT PHYSICIAN REFERRAL § 40.61. Certificate of authorization to practice physical therapy without a referral.
(a) An applicant for certification of authorization to practice physical therapy without the referral of a licensed physician shall submit evidence satisfactory to the Board, on forms supplied by the Board, that the applicant has met the following requirements:
(1) Holds a current license to practice physical therapy in this Commonwealth.
(2) Has done one of the following:
(i) Passed the National Physical Therapy Examination (NPTE) after January 1, 1990.
(ii) Passed the NPTE prior to January 1, 1990 and successfully completed, within 2 years prior to application, a Board approved course consisting of at least 10 hours on the appropriate evaluative and screening procedures to determine the need for further examination or consultation by a physician, dentist or podiatrist prior to initiating treatment without a referral. The Board will maintain a list of currently approved courses.
(3) Has done one of the following:
(i) Practiced physical therapy in the delivery of patient care on a continuous basis for at least 2 years immediately preceding the application for certificate of authorization.
(ii) Been licensed by endorsement and practiced physical therapy in the delivery of patient care as a licensed physical therapist in the other state on a continuous basis for at least 2 years immediately preceding the application for certificate of authorization.
(iii) Provided proof of meeting these practice requirements through any combination of subparagraphs (i) and (ii).
(4) Has obtained professional liability insurance under the requirements of § 40.62 (relating to professional liability insurance).
(5) For purposes of this section, continuous practice is defined as a minimum of 200 hours each year in the delivery of direct patient care.
(b) A certificate holder shall display the certificate of authorization in a manner conspicuous to the public.
(c) A certificate holder may not delegate the care of a patient being treated without a referral to a physical therapist who is not a certificate holder.
(d) A certificate holder may treat a person without a referral as provided in this chapter for up to 30 calendar days from the date of the first treatment. A physical therapist may not treat a person beyond 30 days from the date of the first treatment unless the person has obtained a referral from a licensed physician, dentist or podiatrist. The date of the first treatment for purposes of this subsection is the date the person is treated by any physical therapist treating without a referral.
§ 40.62. Professional liability insurance.
(a) Beginning January 1, 2005, or upon applying for a certificate of authorization, whichever occurs earlier, a licensee who applies for and obtains a certificate of authorization shall obtain and maintain professional liability insurance coverage in the minimum amount required to be maintained by physicians under section 711 of the Medical Care Availability and Reduction of Error (MCARE) Act (40 P. S. § 1303.711).
(b) A certificate holder shall notify the Board within 30 days of the holder's lapse in coverage of the required insurance.
(c) The certificate of authorization shall automatically be suspended upon failure to be covered by the required insurance and will not be restored until submission to the Board of satisfactory evidence that the licensee has the required professional liability insurance.
(d) Satisfactory evidence of insurance coverage is any one of the following:
(1) A self-insurance plan that meets the standards and procedures established by the Insurance Department in 31 Pa. Code Chapter 243 (relating to medical malpractice and health-related self-insurance plans).
(2) Personally purchased professional liability insurance.
(3) Professional liability insurance, coverage provided by the licensee's employer.
(4) A similar type of coverage.
§ 40.63. Continuing education
(a) Definitions. The following words and terms, when used in this section, have the following meanings, unless the context clearly indicates otherwise:
Certificate holder--A licensed physical therapist who holds a certificate of authorization to practice physical therapy without a referral.
Contact hour--A unit of measure equaling 60 minutes of participation in an approved continuing education course or program.
(b) Continuing education requirement for renewal of certificate of authorization. Beginning after the first renewal of the certificate of authorization, as a condition of certificate renewal, a physical therapist shall have completed during the preceding biennium a minimum of 20 contact hours of physical therapy continuing education related to keeping the certificate holder apprised of advancements and new developments in the practice of the physical therapy profession. At least 10 of the 20 contact hours shall be in evaluative procedures to treat a person without a referral.
(c) Reports to the Board. A certificate holder shall certify compliance with the continuing education hours requirement at the time of biennial renewal of the certificate. A certificate holder shall retain for at least 4 years, certificates, transcripts or other documentation showing completion of the prescribed number of hours. These records are subject to audit by the Board.
(d) Approved sponsors; acceptable courses and programs.
(1) Courses and programs provided by Board-approved sponsors will be accepted as satisfying the continuing education requirement. It is the responsibility of the certificate holder to ascertain the approval status of the sponsor before undertaking a continuing education activity.
(2) Irrespective of the sponsor, the Board reserves the right to reject a continuing education course or program submitted by a certificate holder if it is outside the scope of practice of physical therapy. The Board will not accept courses or programs which are unrelated to the actual practice of physical therapy--for example, instruction in office management or practice building. A certificate holder will be notified of a rejected course or program in writing, along with the reason for the rejection.
(3) Sponsors of physical therapy continuing education seeking Board approval shall submit an application on forms provided by the Board and pay the required fee. The applicant will be notified of approval or disapproval in writing. Notifications of disapproval will set forth reasons. The Board will not approve a sponsor unless it:
(i) Offers courses or programs, or both, with specific learning objectives geared to improve the professional competence of the participant.
(ii) Verifies attendance of the course.
(iii) Provides each attendee with a certificate which includes participant's name, date, place, course title, presenter and number of contact hours.
(4) The Board may withdraw approval of a sponsor for cause. The sponsor will be notified in writing of the reasons for withdrawal of approval.
(e) Distance education. A certificate holder may accrue all required hours in distance education courses offered by approved sponsors of continuing education as long as the course sponsor evaluates and assesses the extent of learning that has taken place.
(f) Reinstatement of certificate. Reinstatement of certificate shall be subject to the following conditions:
(1) A person whose certificate has lapsed or been inactive shall show compliance with the continuing education requirement during the biennium immediately preceding the request for reinstatement.
(2) A person whose certificate has been suspended or restricted shall show compliance with the continuing education requirement during the entire period of suspension or restriction.
(g) Waivers; exemptions for continuing education. The Board may, in individual cases involving physical disability or illness, or undue hardship, grant a waiver of the continuing education requirements or grant an extension of time to complete the requirements. No waiver or extension of time will be granted unless a written request is submitted by the licensee; or in cases of physical disability or illness, by a physician licensed in this state or another state or territory of the United States or the District of Columbia and whose license is in good standing, or both. All necessary documentation must be received by the Board no later than 90 days preceding the biennial renewal. If the physical disability or illness or undue hardship for which the waiver has been granted continues beyond the period of the waiver, the licensee shall reapply for an extension of the waiver. The Board may, as a condition of any waiver granted require the applicant to make up all or part of the continuing education waived.
[Pa.B. Doc. No. 03-2232. Filed for public inspection November 21, 2003, 9:00 a.m.]
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