RULES AND REGULATIONS
STATE BOARD OF PODIATRY
[49 PA. CODE CH. 29]
Professional Liability Insurance
[36 Pa.B. 2675]
[Saturday, June 3, 2006]The State Board of Podiatry (Board) amends §§ 29.51--29.54 (relating to licensure applications) to read as set forth in Annex A.
Effective Date
The final-form rulemaking will be effective upon publication in the Pennsylvania Bulletin.
Statutory Authority
The final-form rulemaking is authorized under section 15 of the Podiatry Practice Act (63 P. S. § 42.15) and the Medical Care Availability and Reduction of Error (MCARE) Act (MCARE Act) (40 P. S. §§ 1303.101--1303.910).
Background and Purpose
The Health Care Services Malpractice Act (40 P. S. §§ 1301.101--1301.1004), including provisions that relate to requirements for the maintenance of professional liability insurance by podiatrists, has been repealed and replaced by the MCARE Act. This final-form rulemaking amends the Board's current regulations by eliminating references to the Health Care Services Malpractice Act and replacing them with references to the MCARE Act. In addition, the final-form rulemaking more clearly notifies the Board's licensees that they must carry liability insurance as set forth in the MCARE Act.
Description of Amendments
Section 303 of the MCARE Act (40 P. S. § 1303.303) lists ''podiatrist'' as a health care provider. Section 702 of the MCARE Act (40 P. S. § 1303.702) defines ''participating health care provider'' as ''[a] health care provider as defined in section 103 that conducts more than 20% of its health care business or practice within this Commonwealth.'' In compliance with these provisions of the MCARE Act, § 29.51 (relating to applicants) is amended to require an applicant for licensure to inform the Board as to what percentage of the applicant's practice is conducted in this Commonwealth.
Section 29.52 (relating to requirements for applicants) is amended to require applicants for licensure or licensees applying for biennial renewal who practice in this Commonwealth to furnish satisfactory proof to the Board that they are complying with the MCARE Act. The final-form rulemaking also deletes references to minimum amounts of liability insurance that were required by the repealed Health Care Services Malpractice Act. A technical correction was made to § 29.52(a) to provide parallel construction within the subsection.
Section 29.52(c) is amended to add a statement requiring the Board's licensees to carry liability insurance or an approved self-insurance plan as required by the MCARE Act. In addition, a statement was added to clarify that licensees must be insured for all professional services the licensee performs. For example, a licensee may only perform surgery if the licensee carries surgical liability insurance.
Section 29.53 (relating to original license) requires podiatrists applying for original licensure to furnish the Board with proof of professional liability insurance. The Board deleted outdated references to the Arbitration Panels and the CAT fund.
Section 29.54 (relating to penalty), which provides the podiatrist with notice that failure to comply with liability insurance requirements will result in discipline, was amended to replace the reference to the repealed Health Care Services Malpractice Act with the MCARE Act.
Comment and Regulatory Review of Proposed Rulemaking
Publication of the proposed rulemaking at 34 Pa.B. 4902 (September 4, 2004), was followed by a 30-day public comment period. The Board received no public comments.
Following the close of the public comment period, the Board received comments from the House Professional Licensure Committee (HPLC) and the Independent Regulatory Review Commission (IRRC). The Board did not receive comments from the Senate Consumer Protection and Professional Licensure Committee (SCP/PLC).
Existing § 29.52(b) provides that licensees practicing solely as Federal employees are not required to participate in the professional liability insurance program or to comply with the Health Care Services Malpractice Act. As proposed, § 29.52(b) would be amended to replace Health Care Services Malpractice Act with the MCARE Act. The HPLC asked the Board to confirm that the MCARE Act did not apply to Federal employees. IRRC commented that subsection (b) should be deleted in its entirety unless the Board could justify the statutory authority for its position.
The definition of ''government'' in section 702 (40 P. S. § 1303.702) of the MCARE Act is the same as the definition of ''government'' in section 103 of the Health Care Services Malpractice Act (40 P. S. § 1301.103). Similarly, section 711(i) of the MCARE Act (40 P. S. § 1303.711(i)), which states that governmental entities may satisfy their obligations under the MCARE Act, and the obligations of their employees, by purchasing insurance or self insuring is a restatement of section 701(c) of the Health Care Services Malpractice Act (40 P. S. § 1301.701(c)). Section 711(i) of the MCARE Act also requires government entities to pay assessments to the Commonwealth Medical Care Availability and Reduction of Error Fund. In interpreting the relevant provisions of the Health Care Services Malpractice Act, a Pennsylvania Attorney General Opinion ruled that that ''[h]ealth care providers employed by the Federal government do not have to comply with the fee and insurance provisions of [the Health Care Services Malpractice Act].'' 1976 Op. Atty. Gen. No. 4. The Opinion relied upon the Federal Tort Claims Act (28 U.S.C.A. § 2679(d)(1)) which provides that ''[u]pon certification by the [United States] Attorney General that the defendant employee was acting within the scope of his office or employment at the time of the incident out of which the claim arose . . . the United States shall be substituted as the party defendant.'' The purpose of this amendment to the Federal Tort Claims Act was to ''remove the potential personal liability of Federal employees for common law torts committed within the scope of their employment, and . . . instead provide that the exclusive remedy for such torts is through an action against the United States under the FTCA.'' H.R. Rep. No. 700, 100th Cong., 2d Sess. 4 (1988).
Inasmuch as there is no substantive difference between the language of the two acts, the Board believes that the MCARE Act insurance provisions were not intended to reverse the Attorney General's ruling and that the existing language of § 25.52(b) should not be deleted.
The HPLC also suggested that if the Board found that licensees employed by the Federal government do not have to comply with the MCARE Act, the Board should rewrite § 29.52(b) so that, if the Federal government changes its policy, licensees employed by the Federal government may comply with the MCARE Act. Section 29.52(b) does not prohibit licensees who are employed by the Federal government from complying with the MCARE Act. Rather, § 29.52(b) provides that these licensees are not required to comply with the MCARE Act. For this reason, the Board believes that § 29.52(b) will apply whether or not the Federal government changes its policy.
IRRC recommended that the Board amend § 29.53 to mirror section 711(b) of the MCARE Act, which requires health care providers to ''submit proof of insurance or self-insurance to the department within 60 days of the policy being issued.'' The Board has complied with IRRC's recommendation by changing its original 90-day requirement to 60 days.
IRRC further recommended that the citations to the MCARE Act in §§ 29.52(a) and 29.54 be specific to the subjects in these sections. The Board believes that it is incumbent upon the licensee to be familiar with the relevant provisions of the MCARE Act regarding podiatrists. For this reason, the Board respectfully declines IRRC's recommendation.
Fiscal Impact and Paperwork Requirements
The final-form rulemaking should have no fiscal impact on the Commonwealth or its political subdivisions. Likewise, the final-form rulemaking should not necessitate any legal, accounting, reporting or other paperwork requirements.
Sunset Date
The Board continuously monitors the effectiveness of its regulations. 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 August 23, 2004, the Board submitted a copy of the notice of proposed rulemaking, published at 34 Pa.B. 4902, to IRRC and the Chairpersons of the HPLC and the SCP/PLC for review and comment.
Under section 5(c) of the Regulatory Review Act, IRRC, the HPLC and the SCP/PLC 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 HPLC and the SCP/PLC and the public.
Under section 5.1(j.2) of the Regulatory Review Act (71 P. S. § 745.5a(j.2)), on April 4, 2006, the final-form rulemaking was approved by the HPLC. On April 18, 2006, 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 19, 2006, and approved the final-form rulemaking.
Contact Person
Further information may be obtained by contacting Gina Bittner, Board Administrator, State Board of Podiatry, Post Office Box 2649, Harrisburg, PA 17105-2649, gbittnerstate.pa.us.
Findings
The Board finds that:
(1) Public notice of proposed rulemaking 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 does not enlarge the purpose of proposed rulemaking published at 34 Pa.B. 4902.
(4) This final-form rulemaking is necessary and appropriate for administering and enforcing the act.
Order
The Board, acting under its authorizing statutes, orders that:
(a) The regulations of the Board, 49 Pa. Code Chapter 29, are amended by amending §§ 29.51--29.54 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.
S. RONALD MILLER, D.P.M.,
Chairperson(Editor's Note: For the text of the order of the Independent Regulatory Review Commission, relating to this document, see 36 Pa.B. 2251 (May 6, 2006).)
Fiscal Note: Fiscal Note 16A-447 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 29. STATE BOARD OF PODIATRY
LICENSURE APPLICATIONS § 29.51. Applicants.
On applications for licensure or the biennial renewal of a license, the applicant shall answer the following three questions:
(1) Using as a base the number of patients served in an annual period, what percentage of your practice is in Pennsylvania?
0% ______ 1--20% ______ 21% or more ______ .
(If the answer to question (1) is 0%, or if practicing only as a Federal employee, (2) and (3) need not be answered.)
(2) Name of professional liability insurance carrier:
__________
(3) Policy No.
__________
§ 29.52. Requirements for applicants.
(a) Applicants for licensure or licensees applying for biennial renewal, who practice in this Commonwealth, shall furnish satisfactory proof to the Board that they are complying with the Medical Care Availability and Reduction of Error (MCARE) Act (40 P. S. §§ 1303.101--1303.910), in that the applicant or licensee, if required by the act and the rules and regulations pertaining thereto, is maintaining the required amount of professional liability insurance or an approved self-insurance plan, and has paid the required fees and surcharges.
(b) Licensees practicing solely as Federal employees are not required to participate in the professional liability insurance program, nor are they required to comply with the MCARE Act.
(c) Licensees practicing podiatry in this Commonwealth shall carry at least the minimum amount of professional liability insurance or an approved self-insurance plan as set forth in the MCARE Act. The licensee shall carry liability insurance or an approved self-insurance plan to cover all professional services performed by the licensee. Licensees who do not practice in this Commonwealth are not required to comply with the MCARE Act.
§ 29.53. Original license.
A podiatrist applying for an original license to practice podiatry shall, within 60 days after receipt of the podiatrist's original license, furnish the Board with the information required in § 29.51 (relating to applicants), and proof of professional liability insurance as required by § 29.52(a) (relating to requirements for applicants).
§ 29.54. Penalty.
Failure to comply with the Medical Care Availability and Reduction of Error (MCARE) Act (40 P. S. §§ 1303.101--1303.910), the regulations issued thereunder, and this subchapter will result in a suspension or revocation of the licensee's license after a formal hearing before the Board.
[Pa.B. Doc. No. 06-975. Filed for public inspection June 2, 2006, 9:00 a.m.]
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