PROPOSED RULEMAKING
DEPARTMENT OF STATE
[ 49 PA. CODE CH. 43b ]
Continuing Education Enforcement
[39 Pa.B. 2205]
[Saturday, May 2, 2009]The Commissioner of Professional and Occupational Affairs (Commissioner) proposes to amend § 43b.6 (relating to schedule of civil penalties--funeral directors and funeral establishments) to read as set forth in Annex A.
Effective Date
The amendment will be effective upon publication of the final-form rulemaking 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 in the Bureau of Professional and Occupational Affairs (Bureau), to promulgate a schedule of civil penalties for violations of the acts or regulations of these licensing boards. Section 11(a)(6) of the Funeral Director Law (act) (63 P. S. § 479.11(a)(6)) authorizes the State Board of Funeral Directors to take disciplinary action against a licensee for violating any provisions of the act or regulations of the Board. Section 17(b) of the act (63 P. S. § 479.17(b)) authorizes the Board to levy a civil penalty of up to $1,000 on any licensee who violates any provision of the act.
Background and Need for the Amendment
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 licensing boards. 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 have the right to a hearing and 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 licensing boards being accomplished through the Act 48 citation process. The Board has had an Act 48 schedule of civil penalties since 1997 (See, 27 Pa.B. 6467 (December 12, 2009)).
Section 10(b)(2) of the act (63 P. S. § 479.10(b)(2)) requires licensees to complete 6 hours of mandatory continuing education during each biennial renewal period as a condition of license renewal. In accordance with section 10(b)(1) of the act (63 P. S. § 479.10(b)(1)), in 2005 the Board promulgated regulations to implement the continuing education requirement. Under the current regulations, any failure to comply with the continuing education requirements could lead to formal disciplinary action. As is being done for other licensing boards with continuing education requirements, the Commissioner is proposing a civil penalty schedule for violation of the continuing education requirements for licensees of the Board, because the Commissioner and Board believe the Act 48 citation process will be a much more efficient method of handling violations, while still ensuring licensees retain their right to due process of law. Payment of the civil penalty will not relieve a licensee of the obligation to complete the required amount of mandatory continuing education. Under the separate rulemaking being proposed by the Board, a licensee who fails to complete the required amount of mandatory continuing education during the biennial renewal period will also be required to complete the required continuing education during the first 6 months of the renewal period; failure to complete the required continuing education by that deadline with subject the licensee to formal disciplinary action.
Description of the Proposed Amendments
The Commissioner, in consultation with the Board, proposes for a first offense violation of failing to complete the required amount of mandatory continuing education during the biennial renewal period a civil penalty $175 for each credit hour that the licensee is deficient, up to a maximum of $1,000. Second and subsequent offenses would not be subject to an Act 48 citation, but rather, would proceed through the formal disciplinary process.
Compliance with Executive Order 1996-1
The Board considered and approved the proposed amendments at regularly scheduled public meetings. The Commissioner reviewed the proposed amendments and considered their purpose and likely impact upon the public and the regulated community under the directives of Executive Order 1996-1. The proposed rulemaking addresses a compelling public interest as described in this Preamble and otherwise complies with Executive Order 1996-1.
Fiscal Impact and Paperwork Requirements
The proposed rulemaking should have no adverse fiscal impact on the Commonwealth, its political subdivisions, or the private sector. The proposed rulemaking will impose no additional paperwork requirements upon the Commonwealth, its political subdivisions, or the private sector. Instead, the proposed rulemaking will 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 to be self-supporting. Therefore, the Commissioner and the boards continuously monitor the cost effectiveness of their regulations. 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 22, 2009, the Commissioner submitted a copy of this proposed rulemaking and a copy of a Regulatory Analysis Form to the Independent Regulatory Review Commission (IRRC) and to the Chairpersons of the Senate Consumer Protection and Professional Licensure Committee and the House Professional Licensure Committee. A copy of this material is available to the public upon request.
Under section 5(g) of the Regulatory Review Act, IRRC may convey any comments, recommendations of objections to the proposed rulemaking within 30 days of the close of the public comment period. The comments, recommendations or objections shall specify the regulatory review criteria which have not been met. The Regulatory Review Act specifies detailed procedures for review, prior to final publication of the rulemaking, by the Board, the General Assembly and the Governor of comments, recommendations or objections raised.
Public Comment
Interested persons are invited to submit written comments, recommendations or objections regarding this proposed rulemaking to Regulatory Unit Counsel, Department of State, at P. O. Box 2649, Harrisburg, PA 17105-2649 or ST-FUNERAL@state.pa.us, within 30 days of publication of this proposed rulemaking in the Pennsylvania Bulletin. Please reference No. 16-47 (funeral board CE enforcement), when submitting comments.
BASIL L. MERENDA,
Commissioner of Professional
and Occupational AffairsFiscal Note: 16-47. No fiscal impact; (8) recommends adopted.
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.6. Schedule of civil penalties--funeral directors and funeral establishments.
STATE BOARD OF FUNERAL DIRECTORS
Violation Under
63 P. S.Title/Description Penalties * * * * *
Section 479.10(b) Failure to complete the required amount of continuing education First offense--$175 per hour of deficiency, not to exceed $1,000
Second offense--formal action* * * * *
[Pa.B. Doc. No. 09-797. Filed for public inspection May 1, 2009, 9:00 a.m.]
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