RULES AND REGULATIONS

Title 49--PROFESSIONAL AND VOCATIONAL

BUREAU OF PROFESSIONAL AND OCCUPATIONAL AFFAIRS

[ 49 PA. CODE CH. 43b ]

Schedule of Civil Penalties--Nurses

[38 Pa.B. 3654]
[Saturday, July 5, 2008]

   The Commissioner of Professional and Occupational Affairs (Commissioner) hereby rescinds § 43b.18 (relating to schedule of civil penalties--nurses--statement of policy) and replaces it with § 43b.18a (relating to schedule of civil penalties--nurses) to read as set forth in Annex A.

Effective date

   The amendments are effective upon final-form publication in the Pennsylvania Bulletin.

Statutory authority

   Section 5(a) of the act of July 2, 1993 (P. L. 345, No. 48) (Act 48) (63 P. S. § 2205(a)) authorizes the Commissioner, after consultation with licensing boards and commissions in the Bureau of Professional and Occupational Affairs (Bureau), to promulgate a schedule of civil penalties for violations of the acts or regulations of the licensing boards or commissions.

Background and purpose

   Act 48 authorizes agents of the Bureau to issue citations and impose civil penalties under schedules adopted by the Commissioner in consultation with the Bureau's boards and commissions. Act 48 citations streamline the disciplinary process by eliminating the need for formal orders to show cause, answers, adjudications and orders, and consent agreements. At the same time, licensees who receive an Act 48 citation retain their due process right of appeal prior to the imposition of discipline. The use of Act 48 citations has increased steadily since 1996, when the program was first implemented, and they have become an important part of the Bureau's enforcement efforts, with approximately 30% of all sanctions imposed by the boards and commissions being accomplished through the Act 48 citation process.

   Annex A sets forth amendments to the civil penalty schedule of the State Board of Nursing (Board). The amendments were drafted following discussions with a representative of the Commissioner and the Board at regularly scheduled public meetings. The schedule of civil penalties for lapsed license violations was previously published as a statement of policy at 34 Pa.B. 5809 (October 23, 2004). This rulemaking codifies the schedule of civil penalties as a regulation.

   In addition, the schedule of civil penalties is being amended to establish new civil penalties for violation of the continuing education requirement recently enacted in section 12 of the Professional Nursing Law (law) (63 P. S. § 222). Section 12 of the law requires professional nurses to complete 30 hours of continuing education during each biennium. The Board is promulgating comprehensive regulations implementing the mandate of section 12 of the law through separate rulemaking. The Commissioner is adopting a civil penalty schedule for violation of the continuing education requirements for professional nurses because with over 200,000 professional nurses now subject to continuing education requirements, the Commissioner and Board believe the Act 48 citation process will be a much more efficient method of handling violations, while still ensuring licensees due process.

Description of the amendments

   The Commissioner, in consultation with the Board, is establishing a $250 civil penalty for the first offense of failing to complete 1 to 10 hours of continuing education in a biennial period; a $500 civil penalty for failing to complete 11 to 20 hours of continuing education in a biennial period; and a $1,000 civil penalty for failing to complete 21 to 30 hours of continuing education in a biennial period. Second and subsequent offenses would not be subject to an Act 48 citation, but rather, would proceed through the formal disciplinary process.

Summary of comments to the proposed rulemaking and the Commissioner's response

   Notice of proposed rulemaking was published at 37 Pa.B. 1986 (April 28, 2007). During the public comment period, the Commissioner received comments from the Pennsylvania State Education Association (PSEA). In addition, as part of their review under the Regulatory Review Act (71 P. S. §§ 745.1--745.12a), the House Professional Licensure Committee (HPLC) submitted a comment. The Senate Consumer Protection and Professional Licensure Committee (SCP/PLC) did not comment. On June 28, 2007, the Commissioner received a letter from the Independent Regulatory Review Commission (IRRC) indicating that the Commission had no objections, comments or recommendations to offer on this regulation. The following represents a summary of the comments received and the Commissioner's response.

   The PSEA expressed the opinion that the schedule of civil penalties for nurses who fail to complete mandatory continuing education is too harsh. In addition, the PSEA commented that there did not appear to be any due process provisions in the regulations to allow the nurse to appeal the imposition of a fine.

   As a result of these comments, the Commissioner discussed the civil penalty schedule with the Board and concluded that the civil penalties are not excessive; in fact, they are significantly lower than the fines imposed by many other licensing boards in the Bureau for continuing education violations. For example, some boards routinely impose civil penalties of $50 to $100 per credit hour deficient. For ease of administration and due to the significantly larger licensee population of the Board, the Board and the Commissioner have determined that the civil penalties should be imposed in blocks of credits deficient rather than per credit hour. The Commissioner and the Board believe that these civil penalties are not excessive and will serve as a sufficient deterrent to prevent nurses from neglecting their mandatory continuing education requirement.

   The procedures for appealing a civil penalty imposed by citation are set forth in § 43b.3 (relating to procedures). A nurse who wishes to dispute the imposition of a civil penalty imposed by citation simply declares this intention and mails the citation form back to the Bureau. A hearing is then scheduled before a hearing examiner, for which the nurse is notified by first class mail. If the nurse disagrees with the decision of the hearing examiner, the nurse may appeal it to the Board. If the Board ultimately determines that the nurse has violated the regulations and is subject to the civil penalty, the nurse may appeal the Board's decision to the Commonwealth Court of Pennsylvania. The nurse's due process rights are fully protected by these procedures.

   The HPLC noted that the schedule of civil penalties also includes a civil penalty for practicing on a lapsed license and that the continuing education requirement was imposed by the General Assembly as a condition for biennial renewal. Therefore, the HPLC asked whether a nurse would be subject to the civil penalties for both the failure to complete the continuing education requirement and for practicing on a lapsed license. Because the Bureau's enforcement of the continuing education requirements for all of the health-related boards is accomplished by way of post-renewal audit which is not accomplished until after the biennial renewal is completed, all otherwise renewable licenses are renewed. The Board has elected to impose a 6-month compliance period following the end of the biennial renewal period in which all deficient continuing education must be made up. Those nurses who self-report or who are identified as having been deficient through the postrenewal audit will be subject to the civil penalty for violation of the continuing education requirements. Those nurses who falsely certified that they were in compliance when they renew their licenses may also be subject to disciplinary action for violation of section 14(a)(4) of the law (63 P. S. § 224(a)(4)), which prohibits fraud or deceit in securing admission to practice. In addition, nurses who fail to make up the continuing education during the 6-month compliance period, or have subsequent continuing education violations, will be subject to additional discipline, including additional civil penalties, reprimand or even suspension until the nurse comes into compliance. However, a nurse's license will remain active during the disciplinary process, therefore, the Board does not anticipate many circumstances when civil penalties for practicing on a lapsed license would be imposed in addition to the civil penalties for failure to complete the continuing education.

   No amendments were made to the final-form rulemaking as a result of these comments.

Fiscal Impact and Paperwork Requirements

   The amendments would have no adverse fiscal impact on the Commonwealth or its political subdivisions, and would reduce the paperwork requirements of both the Commonwealth and the regulated community by eliminating the need for orders to show cause, answers, consent agreements and adjudications/orders for those violations subject to the Act 48 citation process.

Sunset Date

   Professional licensure statutes require each board and commission to be self-supporting; therefore, boards and commissions continually monitor the cost effectiveness of regulations affecting their operations. As a result, no sunset date has been assigned.

Regulatory Review

   Under section 5(a) of the Regulatory Review Act (71 P. S. § 745.5(a)), on April 18, 2007, the Commissioner submitted a copy of the notice of proposed rulemaking, published at 37 Pa.B. 1986, to the 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 Board has considered all comments from IRRC, the HPLC, 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 May 24, 2008, the final-form rulemaking was approved by the HPLC. On June 4, 2008, the final-form rulemaking was deemed approved by the SCP/PLC. Under section 5(g) of the Regulatory Review Act was deemed approved effective June 4, 2008.

Additional Information

   Additional information may be obtained by writing to Basil L. Merenda, Commissioner of Professional and Occupational Affairs, P. O. Box 2649, Harrisburg, PA 17105-2649.

Findings

   The Commissioner 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 under those provisions in 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 the proposed rulemaking published at 37 Pa.B. 1986.

   (4)  This final-form rulemaking is necessary and appropriate for administering and enforcing the Act 48.

Order

   The Commissioner, acting under the authority provided under Act 48, orders that:

   (a)  The civil penalty schedules promulgated by the Commissioner, 49 Pa. Code Chapter 43b, are amended by deleting the statement of policy in § 43b.18 and by adding § 43b.18a to read as set forth in Annex A.

   (b)  The Commissioner shall submit this order and Annex A to the Office of General Counsel and the Office of Attorney General as required by law.

   (c)  The Commissioner 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.

BASIL L. MERENDA,   
Commissioner

   (Editor's Note:  For the text of the order of the Independent Regulatory Review Commission relating to this document, see 38 Pa.B. 3461 (June 21, 2008).)

   Fiscal Note:  Fiscal Note 16-38 remains valid for the adoption of the subject regulation.

Annex A

TITLE 49. PROFESSIONAL AND VOCATIONAL STANDARDS

PART I. DEPARTMENT OF STATE

Subpart A. PROFESSIONAL AND OCCUPATIONAL AFFAIRS

CHAPTER 43b. COMMISSIONER OF PROFESSIONAL AND OCCUPATIONAL AFFAIRS

SCHEDULE OF CIVIL PENALTIES, GUIDELINES FOR IMPOSITION OF CIVIL PENALTIES AND PROCEDURES FOR APPEAL

§ 43b.18. (Reserved).

§ 43b.18a. Schedule of civil penalties--nurses.

STATE BOARD OF NURSING

Violation   under  63 P. S.	Title/Description	Civil Penalty
Section 225.4	Practicing professional nursing on a lapsed license	1st offense-- 0--12 mos.-- $100 per month up to $1,000 Over 12 months-- Formal action 2nd offense-- Formal action
Section 664(4)	Practicing practical nursing on a lapsed license	1st offense-- 0--12 mos.-- $75 per month; Over 12 months-- Formal action 2nd offense-- Formal action
Section 225.4	Holding oneself out as a licensed dietitian- nutritionist on a lapsed license	1st offense-- 0--12 months-- $100 per month up to $1,000 Over 12 months-- Formal action 2nd offense-- Formal action
Section 222(b)	Failure to complete 30 hours of approved continuing education	1st offense-- Deficiency of 1--10 hours--$250 Deficiency of 11--20 hours--$500 Deficiency of 21--30 hours--$1,000 2nd offense-- Formal action

[Pa.B. Doc. No. 08-1253. Filed for public inspection July 3, 2008, 9:00 a.m.]

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