NOTICES

INDEPENDENT REGULATORY REVIEW COMMISSION

Notice of Comments Issued

[35 Pa.B. 2474]

   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 regulation. 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final-form regulation must be submitted within 2 years of the close of the public comment period or it will be deemed withdrawn.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-4919	State Board of Medicine Registration and Practice of Acupuncturists 35 Pa.B. 1210 (February 12, 2005)	3/14/05	4/13/05
16A-698	State Board of Social Workers,    Marriage and Family Therapists and Professional Counselors Supervised Clinical Experience 35 Pa.B. 1221 (February 12, 2005)	3/14/05	4/13/05
16A-5120	State Board of Nursing Dietitian-Nutritionists 35 Pa.B. 1213 (February 12, 2005)	3/14/05	4/13/05
#16A-4814	State Board of Funeral Directors Unprofessional Conduct 35 Pa.B. 1208 (February 12, 2005)	3/14/05	4/13/05

State Board of Medicine #16A-4919 (IRRC #2455)

Registration and Practice of Acupuncturists

April 13, 2005

   We submit for your 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 March 14, 2005. If the final-form regulation is not delivered within two years of the close of the public comment period, the regulation will be deemed withdrawn.

1.  Section 18.11. Definitions.--Clarity; Protection of the public health.

Acupuncture examination

   This definition states, in part, the following: ''The Board recognizes the combination of the NCCAOM examinations in acupuncture and sterilization procedures as an acupuncture examination.'' This proposal expands the definition of ''acupuncture'' to include ''supplemental techniques.'' It is our understanding that the NCCAOM offers five examinations that cover various aspects of the field of acupuncture, including ''supplemental techniques.'' Did the Board consider adding any of these additional examinations, such as the examination in Chinese Herbology, to the acupuncture examination requirements?

NCAAOM

   This definition is an acronym for the National Certification Commission for Acupuncture and Oriental Medicine. The final-form regulation should be amended to reflect the correct acronym, NCCAOM.

2.  Section 18.13. Requirements for registration as an acupuncturist.--Protection of the public health.

   Subsection (a)(2) states that if an acupuncture examination was not taken in English, the Board will accept a passing score if the applicant has also secured a score of 550 on the test of English as a Foreign Language (TOEFL). The Association for Professional Acupuncture in Pennsylvania (Association) has suggested that applicants be required to take the Test for Spoken English (TSE) in addition to the TOEFL. The Association's comments noted the following: ''The TSE is an inexpensive and reasonable test and we feel the issue of being able to verbally communicate with the patient is important in regards to public safety.'' Has the Board considered requiring the TSE for applicants who took the acupuncture examination in a language other that English?

State Board of Social Workers, Marriage and Family Therapists and Professional
Counselors Regulation #16A-698 (IRRC #2458)

Supervised Clinical Experience

April 13, 2005

   We submit for your 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 Social Workers, Marriage and Family Therapists and Professional Counselors (Board) must respond to these comments when it submits the final-form regulation. The public comment period for this regulation closed on March 14, 2005. If the final-form regulation is not delivered within two years of the close of the public comment period, the regulation will be deemed withdrawn.

Section 47.12c. Licensed clinical social worker.

Section 48.13. Licensed MFT [marriage and family therapist].

Section 49.13. Licensed professional counselor.--Clarity.

Subsection (b) Supervised clinical experience.

   This subsection sets forth the requirements and procedures for supervised experience for applicants for licensure. The proposed regulation adds identical language to Subsection (b)(6) in Sections 47.12c, 48.13 and 49.13. Currently, Subsection (b)(6) limits a licensee, qualified to act as a supervisor, to supervising no more than six supervisees at the same time. The proposed regulation states that this limitation ''does not apply to supervised experience obtained in group sessions within an educational, institutional or agency setting.'' We have two concerns.

   First, the terminology is used inconsistently. The proposed regulation uses the term ''group sessions'' while existing regulations use the term ''group setting'' for what appears to be the same purpose. Under existing language in Subsection (b)(5), a supervisor must meet for two hours with a supervisee during each 40-hour period of supervised experience. The supervisor must meet individually with a supervisee for at least one of the two hours. Subsection (b)(5) also states that the supervisor ''may'' meet with supervisees in a ''group setting'' for one of the required two hours. Are the terms ''group setting'' and ''group sessions'' synonymous? If so, the Board should use one term consistently. Further, the exception to the limit of six supervisees should be specifically linked to the option of meeting with a group of supervisees for one hour during every 40-hour period.

   Second, the term ''educational, institutional or agency setting'' is not defined. It is our understanding that this term includes schools, universities, hospitals and nursing homes. If this term means an accredited school or university, or licensed health care facility, this should be clearly indicated in a definition for this term in the final-form regulation.

State Board of Funeral Directors Regulation #16A-4814 (IRRC #2459)

Unprofessional Conduct

April 13, 2005

   We submit for your 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 Funeral Directors (Board) must respond to these comments when it submits the final-form regulation. The public comment period for this regulation closed on March 14, 2005. If the final-form regulation is not delivered within two years of the close of the public comment period, the regulation will be deemed withdrawn.

Section 13.202. Unprofessional conduct.--Consistency with existing federal regulations; Reasonableness; Clarity.

Subparagraph (11)(i)

   We have two concerns with this subparagraph.

   First, it contains language that is not found in the Federal Trade Commission's (FTC) Funeral Rule (16 CFR 453.5(a)). The language in this subparagraph expands the scope of this provision beyond the Funeral Rule by including ''other services.'' The Board should use language that is consistent with the Funeral Rule, add a citation to the appropriate section of the Funeral Rule or explain why it has included ''other services.''

   If the final-form regulation retains this phrase, it should clearly state what ''other services'' a funeral director may provide without permission if there is a ''legitimate need'' to provide those services.

   Also, the Board needs to clarify what it considers to be a ''legitimate need'' to provide services without obtaining prior permission.

   Second, it does not appear that the Board sought an exemption from the FTC, as required by the provisions of 16 CFR 453.9 (relating to State exemptions). This federal regulation provides a procedure for states to apply to the FTC for an exemption when the state's requirements, relating to the Funeral Rule, would be more stringent than the FTC regulations. The House Professional Licensure Committee (House Committee) questioned whether the Board should seek an exemption from the FTC on these provisions. We share this concern. Has the Board applied for an exemption or considered doing so?

Paragraph (13)

   Commentators have indicated that this paragraph, if applied to pre-need contracts, is contrary to contract law and would negate a substantial portion of their business. Also, the House Committee questioned if this provision will be applied to pre-need contracts. The Board's counsel has indicated that the Board did not intend to apply this provision to pre-need contracts. For reasonableness and clarity, the Board should insert language into this section that excludes pre-need contracts and clearly delineates the circumstances under which this provision will be applied.

Paragraph (14)

   This paragraph contains the phrase ''funeral entity.'' The Board's counsel has indicated that this is not the same as the presently defined term ''funeral establishment.'' For clarity, the Board should add a definition for ''funeral entity'' to the appropriate section.

Paragraph (16)

   We have two concerns with this paragraph.

   First, it would require a funeral director to permit an immediate family member of a decedent to have the opportunity to pay last respects when the wishes of the decedent, or the person with the right of final disposition of the remains, state otherwise.

   The House Committee asked the Board to ''consider the circumstances in which a decedent's will conflicts with the provision of this paragraph'' and suggests that an exception be included. We agree. We also note that 20 Pa.C.S. § 305 (relating to right to dispose of a decedent's remains) provides for the legal right to control the final disposition of a deceased person's remains.

   The Board should insert language that will give clear guidance to funeral directors in the situation where a legally executed will, or the request of the person with the right of final disposition, conflicts with the proposed language in this paragraph.

   Second, this paragraph contains a vague reference to ''funeral services or merchandise.'' Other portions of this regulation use the phrase ''funeral goods and services.'' Neither of these phrases is defined. Therefore, for clarity, one phrase should be used consistently throughout the regulation and it should be defined in Section 13.1 (relating to definitions).

Paragraph (17)

   The provisions in this paragraph are similar to an existing requirement in Section 13.202(1) (relating to unprofessional conduct). Therefore, this paragraph is duplicative and should be deleted from the final-form regulation.

State Board of Nursing Regulation #16A-5120
(IRRC #2457)

Dietitian-Nutritionists

April 13, 2005

   We submit for your 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 Nursing (Board) must respond to these comments when it submits the final-form regulation. The public comment period for this regulation closed on March 14, 2005. If the final-form regulation is not delivered within two years of the close of the public comment period, the regulation will be deemed withdrawn.

1.  Section 21.701. Definitions.--Protection of the public safety and welfare; Clarity.

Sexual impropriety, sexual violation

   The Board's proposed provisions on sexual misconduct for licensed dietitian-nutritionists (LDNs) differ from the parallel provisions in existing regulation for Registered Nurses (RNs) and Licensed Practical Nurses (LPNs). (See 49 Pa. Code §§ 21.1, 21.18, 21.141 and 21.148.) While we recognize that the scope of practice of nurses differs from that of LDNs, we note the following:

   *  The definition of ''sexual impropriety'' for LDNs differs from the definition of this term for RNs and LPNs in 49 Pa. Code §§ 21.1 and 21.141. Paragraph (iv) lists the offense of discussing or commenting on a ''patient's potential sexual history.'' It is not clear what this offense entails. Another difference is that Paragraph (iv) does not include the phrase ''potential sexual performance'' as used in the RN and LPN regulations.

   *  The definition of ''sexual impropriety'' lists in Paragraph (iii) the offense of ''examining or touching genitals or breasts of a patient.'' This differs from the RN and LPN definitions in three ways. First, this offense is listed in the definition of ''sexual violation'' in both 49 Pa. Code §§ 21.1 and 21.141. Second, the proposed definition omits the phrase ''or other body part'' as used in the definition of ''sexual violation'' in 49 Pa. Code §§ 21.1 and 21.141. Third, the RN and LPN definitions also contain qualifiers including ''for any purpose other than appropriate examination or treatment. . . .''

   The Board should amend these LDN definitions to parallel the definitions used for RNs and LPNs. The Board should also ensure that the level of detail in the regulation is sufficient to enforce the regulation and prosecute actions that constitute sexual misconduct by LDNs.

   Finally, the definition of ''sexual impropriety'' includes a substantive provision in the last sentence of Paragraph (iv). Substantive provisions in definitions are not enforceable. We recommend deleting this sentence from this definition because its content is in the last sentence of Section 21.704(c).

Patient

   The term ''patient'' is defined in this section. However, the term ''client'' is also used in the regulation. If these terms have the same meaning, the Board should use the term ''patient'' consistently in the regulation and delete use of the term ''client.'' If there is a distinction between the two terms, the Board should add a definition of ''client.''

Professional relationship

   This term is used to set limitations on interaction between a licensee and a patient, particularly relating to the definition of ''sexual violation.'' A definition of ''professional relationship'' is needed to establish when the provisions of the regulation that use this term apply. It should clearly state when the professional relationship is established and when it is terminated.

2.  Section 21.721. Education and examination of applicants.--Reasonableness; Clarity.

Initial licensure

   The proposed regulation addresses Board-approved educational programs and examinations, license renewal and continuing education. However, the regulation is silent on initial licensure requirements. Act 99 of 2002 (Act) (63 P. S. § 216(b)) establishes initial licensure requirements which include:

   *  A baccalaureate or higher degree with a major course of study in human nutrition, food and nutrition, dietetics or food systems management;

   *  At least 900 hours of preprofessional experience under the supervision of a registered dietitian, a licensed dietitian-nutritionist or an individual with a doctoral degree in this discipline; and

   *  Completion of a Board-approved examination.

   We recommend that the Board add a section to the final-form regulation which sets forth these initial licensure requirements and the application process.

Equivalent education programs and licensure without examination.

   The Act (63 P. S. §§ 215(b) and (c)) authorizes the Board to admit to examination a person who has completed an education program in another state, territory or country which is equivalent to that required in Pennsylvania. The Act (63 P. S. § 217) also authorizes the Board to issue a license without examination to a person who has graduated from a dietetics-nutrition program with a course of study equivalent to that required in Pennsylvania and who is registered or licensed by examination in another state or territory of the United States or Canada. The final-form regulation should include or cross-reference these statutory provisions. The regulation should also include the procedures an individual must, follow to apply for consideration under these provisions.

Denial of licensure

   The Act (63 P. S. § 216(c)) precludes the Board from issuing a license to ''an applicant who has been convicted of a felonious act prohibited by . . . 'The Controlled Substance, Drug, Device and Cosmetic Act' . . . or convicted of a felony relating to a controlled substance'' unless certain conditions are met. The final-form regulation should include or cross-reference these statutory provisions.

3.  Section 21.722. License renewal.--Statutory Authority; Need; Reasonableness; Clarity.

   Subsection (b) states that a license will be renewed if the licensee performs certain actions, including disclosure of disciplinary action or criminal convictions. In its comments, the House Professional Licensure Committee (Committee) notes that as written, the regulation appears to guarantee license renewal regardless of criminal convictions or other behavior that subjects the licensee to disciplinary action simply upon disclosure. Since the Board has discretion in granting license renewals, the Committee suggests that Subsection (b) be rewritten to state, ''When applying for a renewal of a license, the licensee shall: . . . '' followed by the listing of actions and disclosures the licensee must make. We agree and suggest that the Board make this change.

   Subsection (b)(4) requires a licensee applying for renewal to disclose ''criminal charges pending.'' We question the Board's statutory authority for this provision. If the Board does justify its statutory authority, it should explain why this information is needed and how it intends to act on this information.

4.  Section 21.723. Continuing education.--Statutory Authority; Reasonableness; Clarity.

Subsection (b)

   This subsection lists the entities which the Board will recognize as accepted continuing professional education (CPE) providers. The Pennsylvania Dietetic Association commented that there are other reputable groups which provide CPE but are not listed in the regulation. These groups include medical centers, Amerinet, Nutrition Dimension, Renfrew Center for Eating Disorders and certain private practitioners.

   We agree that further clarification on CPE providers is needed. Subsection (b) refers to continuing education ''sponsored by . . . approved college or dietetic programs.'' The final-form regulation should specify what is an ''approved college or dietetic program.''

   Additionally, we recommend that the final-form regulation establish a process by which an organization or individual can apply to become a Board-approved CPE provider. The application process and the substantive requirements for obtaining CPE provider status should be included in the final-form regulation.

   Subsections (b)(1)(i) through (iv) list non-lecture-based activities for which ''the Board will accept documentation'' of attendance. Based on discussions with Board staff, we understand that an LDN who engages in one of these activities will not automatically be awarded CPE credit. Rather, the LDN will have to apply to the Board to request CPE credit. The Board will review requests on a case by case basis and, at its discretion, may award CPE credit.

   Subsection (b)(1) should be amended in the final-form regulation to clearly state that an LDN may apply to the Board for CPE credit for attending a program listed in Paragraphs (i) through (iv) and that the Board will review the request and determine if CPE credit will be given. The final-form regulation should also list the criteria the Board will use in deciding whether or not to give CPE credit.

Subsection (d)

   This subsection provides that an LDN who can demonstrate a verified hardship may request that the Board grant a waiver of CPE requirements. Did the Board consider allowing LDNs to apply for additional time to meet the CPE requirements, instead of a waiver?

   The Act (63 P. S. § 221(c)) states:

A dietetics-nutrition license issued under this act shall not be renewed unless the licensee applying for renewal submits proof to the Board that during the two (2) calendar years immediately preceding the application for renewal the licensee has satisfactorily completed a minimum of thirty (30) hours of continuing dietetic-nutrition education approved by the Board by regulation.

   In light of this statutory mandate, what is the Board's authority to waive the CPE requirements?

JOHN R. MCGINLEY, Jr.,   
Chairperson

[Pa.B. Doc. No. 05-787. Filed for public inspection April 22, 2005, 9:00 a.m.]

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