NOTICES

Notice of Comments Issued

[34 Pa.B. 1526]

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

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final-form regulation must be submitted within 2 years of the close of the public comment period or it will be deemed withdrawn.

Reg. No.	Agency/Title	Close of the Public Comment Period	IRRC Comments Issued
16A-4914	State Board of Medicine Continuing Medical Education (34 Pa.B. 56 (January 3, 2004))	2/2/04	3/3/04
16A-5312	State Board of Osteopathic Medicine Delegation of Medical Services (34 Pa.B. 58 (January 3, 2004))	2/2/04	3/3/04
16A-6314	State Board of Psychology Notice Requirements (34 Pa.B. 60 (January 3, 2004))	2/2/04	3/3/04

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State Board of Medicine Regulation No. 16A-4914
Continuing Medical Education
March 3, 2004

   We submit for consideration the following comments that include references to the criteria in the Regulatory Review Act (71 P. S. § 745.5b) which have not been met. The State Board of Medicine (Board) must respond to these comments when it submits the final-form regulation. The public comment period for this regulation closed on February 2, 2004. If the final-form regulation is not delivered within 2 years of the close of the public comment period, the regulation will be deemed withdrawn.

1.  Section 16.1. Definitions.--Reasonableness; Clarity.

   We have two concerns pertaining to the definition of ''approved course.'' First, the definition states that the Accreditation Council for Continuing Medical Education (ACCME) must accredit a provider of a continuing education course. Did the Board intend to eliminate course accreditation provided by the State medical society to hospitals for Category I credits?

   Second, Category II credits would be limited to courses provided by ACCME accredited providers. The American Medical Association Physician's Recognition award program has a list of defined activities that qualify for Category II credits which do not have to be ACCME approved. The Board should either modify the definition of ''approved course'' to include Category II credits that are not formally accredited by the ACCME or add language to § 16.19 that states the remaining 70 credit hours may be Category II credits.

   2.  Section 16.19. Continuing medical education.--Clarity.

   Subsection (a) requires ''at least 10 credit hours shall be completed in approved courses in the area of patient safety and risk management.'' It is not clear if the 10 credit hours required in risk management must be Category I credits. For clarity, the Board should specify whether the credits for risk management must be Category I or Category II credits.

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State Board of Osteopathic Medicine Regulation No. 16A-5312
Delegation of Medical Services
March 3, 2004

   We submit for consideration the following comments that include references to the criteria in the Regulatory Review Act (71 P. S. § 745.5b) which have not been met. The State Board of Osteopathic Medicine (Board) must respond to these comments when it submits the final-form regulation. The public comment period for this regulation closed on February 2, 2004. If the final-form regulation is not delivered within 2 years of the close of the public comment period, the regulation will be deemed withdrawn.

Section 25.217. Delegation.--Reasonableness; Consistency with the statute; Clarity.

   Subsection (a)(5) requires that the nature and delegation of the medical service be explained to the patient. This subsection permits the explanation to be oral and given by ''someone other than the osteopathic physician.'' This is inconsistent with section 3 of the Osteopathic Medical Practice Act (63 P. S. § 271.3), which indicates that delegated services are to be ''rendered under the supervision, direction or control of a licensed physician.'' If the services are ''rendered under the supervision, direction or control'' of a physician, then the proposed regulation should specify the physician's role in the explanation given to the patient.

   An example of an approach that places responsibility on the physician is the regulation recently adopted by the State Board of Medicine. The corresponding provision in the regulations of the State Board of Medicine at 49 Pa. Code § 18.402(a)(5) (relating to physician delegation) states the explanation will be given by ''the physician or the physician's designee.'' This language is more precise than the proposed regulation because it identifies the physician's involvement in the explanation given to the patient. Therefore, the Board should amend subsection (a)(5) to require that ''the osteopathic physician or the osteopathic physician's designee'' give the explanation.

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State Board of Psychology Regulation No. 16A-6314
Notice Requirements
March 3, 2004

   We submit for consideration the following comments that include references to the criteria in the Regulatory Review Act (71 P. S. § 745.5b) which have not been met. The State Board of Psychology (Board) must respond to these comments when it submits the final-form regulation. The public comment period for this regulation closed on February 2, 2004. If the final-form regulation is not delivered within 2 years of the close of the public comment period, the regulation will be deemed withdrawn.

   1.  Section 41.91. Reporting of crimes and disciplinary actions.--Consistency with the statute; Need; Reasonableness; Clarity.

Subsection (a)

   This subsection states the following: ''A licensee shall notify the Board of having been convicted of, or having pleaded guilty or nolo contendere to, a felony or misdemeanor, within 30 days of the conviction, verdict or plea.'' We have three concerns with this subsection.

   First, it requires the reporting of all misdemeanors, not just ''those committed in the practice of psychology.'' (The Professional Psychologists Practice Act (act) (63 P. S. § 1208(a)(6)).) A commentator is concerned that this would mandate the reporting of all misdemeanors, including ''where the misdemeanor evidences that the licensee is unable to practice with reasonable skill and safety by reason of illness, drunkenness, excessive use of drugs, narcotics, chemicals or any other material.''

   Three health-related boards require their licensees to report misdemeanors related to their specific practice. The State Board of Chiropractic and the State Board of Medicine require notification of ''a misdemeanor offense relating to a health care practice or profession.'' (49 Pa. Code §§ 5.18(a)(3) and 16.16(a)(3), respectively.) The State Board of Optometry requires notification of a ''misdemeanor relating to or arising out of the practice of optometry.'' (49 Pa. Code § 23.65(a)(1).) In addition, the State Board of Osteopathic Medicine requires notification of a broader array of crimes that include ''a felony, crime of moral turpitude or crime related to the practice of osteopathic medicine.'' (49 Pa. Code § 25.271(a)(3).) Why is the Board imposing a higher reporting standard on their licensees than other health-related boards require of their licensees?

   Second, the regulation is not consistent with the act. The regulation requires reporting when the licensee has been ''convicted of, or having pleaded guilty or nolo contendere to, a felony or misdemeanor . . . .'' The act includes broader provisions in 63 P. S. § 1208(a)(6) that define the term ''convicted'' to include ''a finding or verdict of guilt, an admission of guilt or a plea of nolo contendere or receiving probation without verdict, disposition in lieu of trial or an accelerated Rehabilitative Disposition in the disposition of felony charges.'' The specific language in the act should be used in the regulation. Alternatively, the regulation should use the statutory term ''convicted'' and reference the act.

   Third, this subsection requires licensees to notify the Board ''within 30 days of the conviction, verdict or plea.'' We recommend that this provision be amended to include the phrase ''or on the biennial renewal application, whichever is sooner.'' This would allow the Board to receive more timely notice of convictions, verdicts or pleas. It would also make it consistent with subsection (b), which contains a similar provision.

Subsection (b)

   This subsection states the following:

A licensee shall notify the Board of disciplinary action in the nature of a final order taken against the licensee by the licensing authority of another state, territory or provincial board of psychology within 30 days of receiving notice of the disciplinary action, or on the biennial renewal application, whichever is sooner.

   We have two concerns.

   First, 63 P. S. § 1208.1 states that licensees must notify the Board of any disciplinary action taken in any other state, territory or country within 90 days. We recommend that the 30-day time frame included in this subsection be amended to be consistent with the act.

   Second, this subsection uses the phrase ''state, territory or provincial board of psychology'' to describe other potential licensing authorities. The phrase ''state, territory or country'' is used in 63 P. S. §§ 1208 and 1208.1. Why has the Board decided to use the term ''provincial board of psychology'' instead of ''country''?

   2.  Section 41.92. Notice of active suspension or revocation.--Protection of the public health, safety and welfare; Reasonableness; Implementation procedures; Clarity.

   Under this section, a licensee whose license has been suspended or revoked is required to return the license to the Board. The licensee is also required to notify all current clients/patients of the disciplinary action in writing within 30 days of receiving notice of the disciplinary action. The written notice must include the nature of the violation, the sanction imposed, the effective date and length of the sanction and a statement that the licensee will assist patients in transferring records and obtaining alternative profession services. We have three questions.

   First, would licensees who voluntarily surrender their licenses be required to abide by the provisions of this section? If so, we recommend that the final-form regulation be amended to reflect this requirement.

   Second, this section requires licensees that have been suspended or have had their licenses revoked to assist patients with transferring records and obtaining alternative professional services. If a licensee has committed a felony, such as rape, and has their license revoked, we question the reasonableness of requiring the licensee to make referrals. The final-form regulation should explain how the health, safety and welfare of the patient would be protected in this situation. An alternative to this requirement would be to limit patient referrals to instances where the Board orders the licensee to assist with referrals.

   Third, would licensed psychologists employed by a school be required to comply with this regulation? If so, would they be required to notify all of the students who are patients or just the school administrators of the suspension or revocation?

JOHN R. MCGINLEY, Jr.,   
Chairperson

[Pa.B. Doc. No. 04-450. Filed for public inspection March 12, 2004, 9:00 a.m.]

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