RULES AND REGULATIONS
[49 PA. CODE CH. 33]
Biennial Renewal Fees--Dentist, Restricted Anesthesia Permit II
[35 Pa.B. 2899] The State Board of Dentistry (Board) amends §§ 33.3 and 33.339 (relating to fees; and fees for issuance of permits) to read as set forth in Annex A. The final-form rulemaking increases the biennial licenses renewal fee for dentists from $100 to $250 and increase the biennial renewal fee for a restricted anesthesia permit II from $25 to $50.
Effective Date
The final-form rulemaking will be effective upon publication in the Pennsylvania Bulletin. The new fees will apply to the biennial renewal period beginning April 1, 2005, and thereafter.
Statutory Authority
Section 4(b) of The Dental Law (act) (63 P. S. § 123(b)) provides that if existing revenues are not sufficient to meet expenditures over a 2-year period, the Board shall increase fees by regulation to meet or exceed projected expenditures. Section 11.2(6) of the act (63 P. S. § 130c(a)(6)) specifically authorizes the Board to assess biennial renewal fees for anesthesia permits.
Background and Need for the Final-Form Rulemaking
The Board's current biennial license renewal fee for dentists was established by regulation on July 1, 1995. See 25 Pa.B. 2598 (July 1, 1995). The Board's current fee schedule for renewal of anesthesia permits was established by regulation on July 9, 1988. See 18 Pa.B. 3045 (July 9, 1988). Under section 4(b) of the act, the Board must support its operations with the revenue it derives from fees, fines and civil penalties. Historically, the Board raises virtually all of its operating revenue through biennial renewal fees.
At Board meetings in November 2003 and July 2004, the Department of State's Offices of Revenue and Budget (Offices) presented a summary of the Board's revenue and expenses for Fiscal Years (FY) 2001-2002 and 2003-2004, and projected revenue and expenses through FY 2007-2008. The Offices projected a deficit of $838,225.49 in FY 2004-2005, a deficit of $1,900,225.49 in FY 2005-2006, a deficit of $1,743,225.49 in FY 2006-2007 and a deficit of $2,876,225.49 in FY 2007-2008. The Offices recommended that the Board raise fees to meet or exceed projected expenditures, in compliance with section 4(b) of the act.
The Board's review of its actual and projected expenses over the past 5 years revealed significant shortfalls in the areas of hearing expenses, Board administration and legislative and regulatory analysis. For example, despite annual budget increases, the hearing expenses were $6,225 over budget in FY 1999-2000, $3,188 over budget in FY 2000-2001, $19,954 over budget in FY 2001-2002, $11,283 over budget in FY 2002-2003. The amount budgeted for hearing expenses has risen from $3,000 in FY 1999-2000 to $26,000 in FY 2003-2004. Nevertheless, the hearing expenses are expected to be $43,310 over budget in 2003-2004. Similarly, the budgeted amounts for law enforcement have risen from $233,000 in FY 1999-2000 to $345,000 in FY 2003-2004. The Board has also experienced significant increases in actual expenses over estimated expenses in other areas of the legal office and the Professional Health Monitoring Program (PHMP), the Bureau-wide program for impaired professionals. Overall increased expenditures in these program areas have resulted from greater enforcement activity and increases in the number of disciplinary actions and in the numbers of licensees participating in the PHMP. At the same time, the Board's licensee population has declined by about 400 licensees over the past 5 years, decreasing the Board's biennial revenue. The Offices anticipate that the proposed new biennial renewal fees will enable the Board to recapture the current deficit and to maintain a stable fee structure for renewals upon which its licensees can rely for the next four renewal periods.
In considering the appropriateness of the fee, the Board also compared the proposed renewal fee to similar fees in surrounding states. The Board found that the increase to $250 would result in a renewal fee which is comparable to the renewal fees charged in the surrounding states.
The Board is also removing the anesthesia permit biennial renewal fee from § 33.3 and moving it to § 33.339. The Board finds that § 33.339 is the more appropriate place for these fees because it is within Subchapter E (relating to administration of general anesthesia, deep sedation, conscious sedation and nitrous oxide/oxygen analgesia), which relates solely to anesthesia permits and standards for the administration of anesthesia in dental offices. In a proposed rulemaking published at 34 Pa.B. 1949 (April 10, 2004), the Board filed notice that it intends to amend § 33.339 to reflect new fees for anesthesia permits. Finally, the Board is adding a cross reference in § 33.3 to § 33.339.
Comment and Review of Proposed Rulemaking
Publication of proposed rulemaking at 34 Pa.B. 5596 (October 9, 2004) was followed by a 30-day public comment period during which the Board received comments from the Pennsylvania Dental Association (PDA) and one individual dentist, Thomas F. Cwalina, D.M.D. On December 8, 2004, the Board received comments from the Independent Regulatory Review Commission (IRRC) under the Regulatory Review Act (71 P. S. §§ 745.1--745.12). The Board did not receive comments from the House Professional Licensure Committee (HPLC) or the Senate Consumer Protection and Professional Licensure Committee (SCP/PLC). The Board reviewed all of the comments and subsequently voted to adopt the final-form rulemaking at its January 14, 2005, meeting.
IRRC and the PDA noted that the increase in the biennial renewal fee for dentists from $100 to $250 was significant. The PDA opined that raising fees at the same level in future licensure cycles could have a negative impact on patients' access to dental care should dentists elect to practice in other states. The Board has reviewed the license renewal fees for dentists in the surrounding states and finds that $250 will not place dentists in this Commonwealth at a competitive disadvantage. For example, in New Jersey, dentists pay a biennial renewal fee of $280. In Ohio, the biennial renewal fee is $245 and in Maryland it is $449. In New York, dentists pay a triennial renewal fee of $345. In Delaware, the renewal fee is assessed annually at $125. Moreover, the Board notes that the methodology it followed in establishing the fee is that employed by every licensing board in the Department of State of averaging costs over several biennial renewal cycles. It believes that this approach provides stable fees and allows the Board to operate in compliance with section 4(b) of the act.
The PDA also suggested that the Board consider other methods to meet its budgetary needs, such as raising the disciplinary charges or raising fees for those dentists who are licensed in this Commonwealth, but practice in a different state. The Board is limited by section 10.1 of the act (63 P. S. § 129.1) to the imposition of a civil penalty up to $1,000 on any current licensee who violates any provision of the act or any individual who practices as a dentist, dental hygienist or expanded function dental assistant without a license or certificate. Therefore, the first option suggested by the PDA is not available absent legislative action. The Board issues licenses and certificates which authorize the holders to practice their professions in this Commonwealth without regard to whether they reside or are licensed and practice in other states. The second option suggested by the PDA raises legal considerations that the Board believes makes that option untenable.
The PDA and IRRC questioned the Board's decision not to increase the biennial renewal fees for dental hygienists and expanded function dental assistants. IRRC commented that these other license groups impact program and disciplinary costs and therefore the Board should consider at least moderate increases for these groups. The PDA also requested that the Board consider increasing licensure fees for hygienists because their infractions and subsequent disciplinary hearings incur costs that should not be absorbed by dentists alone. While the Board agrees that dental hygienists and expanded function dental assistants contribute to program costs, the Board finds that the costs associated with disciplinary matters within these groups are relatively low. There are currently 362 open disciplinary matters before the Board. Of these, 333 involve dentists, 26 involve dental hygienists, 1 involves an expanded function dental assistant and 2 involve the unlicensed practice of dentistry. Therefore, over 90% of the disciplinary matters handled by the Board involve dentists. The Board believes that these costs are more equitably borne by dentists, rather than their employees.
IRRC also commented regarding the increase to the renewal fees for anesthesia permits. IRRC noted that the biennial renewal fees are twice the initial permit fee and asked for an explanation. The initial permit fee has been set by the Board at a level that covers the cost of processing the initial permit application. However, the bulk of the Board's revenue is raised through biennial renewal fees. These fees are set at a level that is sufficient to fund the Board's operations, including Board administration, enforcement and investigation, legal office costs including hearing expenses and legislative and regulatory activity. These costs are therefore borne by licensees and permitholders, rather than initial applicants.
Dr. Cwalina also commented regarding the proposed increase in the biennial renewal fee for restricted permit II holders. He suggested that the increased fees be used to pay for a program of State inspections of nitrous oxide/oxygen analgesia equipment. Dr. Cwalina's comment is related to the Board's proposed rulemaking regarding anesthesia, which was published at 34 Pa.B. 1949. That proposed rulemaking requires dentists who hold restricted II permits to install, maintain and calibrate their nitrous oxide/oxygen analgesia equipment according to the manufacturer's guidelines. Dr. Cwalina suggested that the costs associated with calibration of nitrous oxide machines would be prohibitive because the unit must be returned to the manufacturer for calibration. The increase in the renewal fee for restricted II permits is required to support the operations of the Board as previously discussed, including the costs of implementing the anesthesia regulations. The Board has no plans at this time to implement an inspection program for nitrous oxide/oxygen analgesia equipment.
Description of Final-Form Rulemaking
Based upon the expense and revenue estimates provided to the Board, the Board is amending § 33.3 to increase the fee for biennial renewal of licenses for dentists from $100 to $250. The Board is also removing the renewal fees for anesthesia permits from § 33.3 and moving them to § 33.339 and is increasing the biennial renewal fee for a restricted anesthesia permit II from $25 to $50. The biennial renewal fees for an unrestricted anesthesia permit and a restricted anesthesia permit I were previously amended in the Board's proposed rulemaking published at 34 Pa. B. 1949.
Fiscal Impact
The proposed rulemaking will increase the biennial renewal fee for dentists and will increase the biennial renewal fee a restricted anesthesia permit II. The proposed rulemaking should have no other fiscal impact on the private sector, the general public or political subdivisions.
Paperwork Requirements
The proposed rulemaking will require the Board to alter some of its forms to reflect the new biennial renewal fees; however, it should not create additional paperwork for the private sector.
Sunset Date
The act requires that the Board monitor its revenue and costs on a FY and biennial basis. Therefore, no sunset date has been assigned.
Regulatory Review
Under section 5(a) of the Regulatory Review Act (71 P. S. § 745.5(a)), on September 29, 2004, the Board submitted a copy of the notice of proposed rulemaking, published at 34 Pa.B. 5596, to IRRC and the Chairpersons of the SCP/PLC and the HPLC for review and comment.
Under section 5(c) of the Regulatory Review Act, IRRC, the SCP/PLC and the HPLC were provided with copies of the comments received during the public comment period, as well as other documents when requested. In preparing the final-form rulemaking, the Department has considered all comments from IRRC, the SCP/PLC, the HPLC and the public.
Under section 5.1(j.2) of the Regulatory Review Act (71 P. S. § 745.5a(j.2)), on March 30, 2005, the final-form rulemaking was approved by the HPLC. On April 13, 2005, the final-form rulemaking was deemed approved by the SCP/PLC. Under section 5.1(e) of the Regulatory Review Act, IRRC met on April 14, 2005, and approved the final-form rulemaking.
Additional Information
Individuals who need information about the final-form rulemaking should contact Lisa Burns, Administrator, State Board of Dentistry, P. O. Box 2649, Harrisburg, PA 17105-2649.
Findings
The Board finds that:
(1) Public notice of intention to adopt amendments was given under sections 201 and 202 of the act of July 31, 1968 (P. L. 769, No. 240) (45 P. S. §§ 1201 and 1202) and the regulations promulgated thereunder, 1 Pa. Code §§ 7.1 and 7.2.
(2) A public comment period was provided as required by law and all comments were considered.
(3) This final-form rulemaking is necessary and appropriate for administration of the act.
Order
The Board orders that:
(a) The regulations of the Board, 49 Pa. Code, Chapter 33, are amended by amending §§ 33.3 and 33.339 to read as set forth in Annex A.
(b) The Board shall submit this order and Annex A to the Office of General Counsel and to the Office of Attorney General as required by law.
(c) The Board shall certify this order and Annex A and deposit them with the Legislative Reference Bureau as required by law.
(d) This order shall take effect on publication in the Pennsylvania Bulletin.
VEASEY B. CULLEN, Jr., D.M.D.,
Chairperson(Editor's Note: For the text of the order of the Independent Regulatory Review Commission, relating to this document, see 35 Pa.B. 2073 (April 30, 2005).)
Fiscal Note: Fiscal Note 16A-4615 remains valid for the final adoption of the subject regulations.
Annex A
TITLE 49. PROFESSIONAL AND VOCATIONAL STANDARDS
PART I. DEPARTMENT OF STATE
Subpart A. PROFESSIONAL AND OCCUPATIONAL AFFAIRS
CHAPTER 33. STATE BOARD OF DENTISTRY
Subchapter A. GENERAL PROVISIONS § 33.3. Fees.
(a) Following is the schedule of fees charged by the Board:
Application fee--dentists, dental hygienists and expanded function dental assistants $20 Criteria approval application fee--dentists, dental hygienists and expanded function dental assistants $35 Fictitious name registration fee $35 Verification of license, permit or registration fee--dentists, dental hygienists and expanded function dental assistants $15 Certification of scores, permit or registration fee--dentists, dental hygienists and expanded function dental assistants $25 Biennial renewal fee--dentists (for the renewal period beginning April 1, 2005, and thereafter) $250 Biennial renewal fee--dental hygienists $40 Biennial renewal fee--expanded function dental assistants $25 Temporary permit--expanded dental assistants $15 Application fee--dental radiology authorization $20 Notification application--postgraduate training or faculty member $25 (b) For fees related to anesthesia permits, refer to § 33.339 (relating to fees for issuance of permits).
Subchapter E. ADMINISTRATION OF GENERAL ANESTHESIA, DEEP SEDATION, CONSCIOUS SEDATION AND NITROUS OXIDE/OXYGEN ANALGESIA § 33.339. Fees for issuance of permits.
The following fees are charged for the issuance of permits under this subchapter:
(1) Unrestricted permit. (i) Initial $100 (ii) Renewal $200 (iii) Temporary $100 (2) Restricted permit I. (i) Initial $100 (ii) Renewal $200 (iii) Temporary $100 (3) Restricted permit II. (i) Initial $15 (ii) Renewal $50 (iii) Temporary $15
[Pa.B. Doc. No. 05-940. Filed for public inspection May 13, 2005, 9:00 a.m.]
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