PROPOSED RULEMAKING
DEPARTMENT OF STATE
[49 PA. CODE CH. 43b]
Schedule of Civil Penalties—Chiropractors
[39 Pa.B. 5580]
[Saturday, September 26, 2009]The Commissioner of Professional and Occupational Affairs (Commissioner) proposes to add § 43b.22 (relating to schedule of civil penalties—chiropractors) to read as set forth in Annex A.
Effective Date
The regulation 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 506(a)(9) of the Chiropractic Practice Act (act) (63 P. S. § 625.506(a)(9)) authorizes the State Board of Chiropractic (Board) to take disciplinary action against a licensee for violating any provisions of the regulations of the Board. Section 506(a)(13) of the act (63 P. S. § 625.506(a)(13)) authorizes the Board to take disciplinary action against a licensee for failing to perform any statutory obligation placed upon a licensed chiropractor. Section 507(a) of the act (63 P. S. § 625.507(a)) requires a licensed chiropractor to complete at least 24 hours of continuing education during each biennial renewal cycle. Section 703 of the act (63 P. S. § 625.703) 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 Regulation
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 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 not previously had an Act 48 schedule of civil penalties.
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 due process. 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 next 6 months; failure to complete the required continuing education by that deadline will subject the licensee to formal disciplinary action. See 39 Pa.B. (September 26, 2009).
Also, the Board's current regulation at 49 Pa. Code § 5.17(g) (relating to biennial registration; unregistered status and inactive status; failure to renew; address of record) prohibits a licensee whose license has lapsed from practicing chiropractic in this Commonwealth. As is being done for other licensing boards, the Commissioner is proposing a civil penalty schedule for practice on a lapsed or expired license, 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 due process. Because failure to renew a license might be an attempt to avoid the continuing education or malpractice insurance requirements, use of an Act 48 citation for lapsed license practice will be limited to those first-time offenders who are in compliance with the continuing education requirements. A licensee who practiced on a lapsed license without having complied with the continuing education or malpractice insurance requirements will instead be subject to formal disciplinary action where the Board has the authority to suspend or revoke a license.
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 $50 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. The Commissioner, in consultation with the Board, also proposes for a first offense violation of practicing on a lapsed or expired license while in compliance with continuing education and malpractice insurance requirements a civil penalty $250 for practicing less than 6 months, $500 for 6 to 12 months, and $1,000 for 12 to 24 months. 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 regulation at regularly scheduled public meetings. The Commissioner reviewed the proposed regulation and considered the 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. 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 September 11, 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 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 or 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-form 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, P. O. Box 2649, Harrisburg, PA 17105-2649 or by e-mail at st-chiro@state.pa.us, within 30 days of publication of this proposed rulemaking in the Pennsylvania Bulletin. Use reference No. 16-44 (Act 48 chiro schedule of civil penalties), when submitting comments.
BASIL L. MERENDA,
CommissionerFiscal Note: 16-44. No fiscal impact; (8) recommends adoption.
Annex A
TITLE 49. PROFESSIONAL AND VOCATIONAL STANDARDS
PART I. DEPARTMENT OF STATE
Subpart A. PROFESSIONAL AND VOCATIONAL AFFAIRS
CHAPTER 43b. COMMISSIONER OF PROFESSIONAL AND OCCUPATIONAL AFFAIRS
SCHEDULE OF CIVIL PENALTIES, GUIDELINES FOR IMPOSITION OF CIVIL PENALTIES AND PROCEDURES FOR APPEAL § 43b.22. Schedule of civil penalties—chiropractors.
STATE BOARD OF CHIROPRACTIC
Violation Under
63 P. S.Title/Description Penalties Section 625.507(a) Failure to timely complete the required amount of continuing education First offense—$50 per hour of deficiency, not to exceed $1,000
Subsequent offense—formal actionViolation Under
49 Pa. CodeTitle/Description Penalties § 5.17(g) Practice on a lapsed license in compliance with CE and malpractice insurance requirements—first offense Less than 6 months—$250
6 months to 12 months—$500
12 months to 24 months—$1,000
[Pa.B. Doc. No. 09-1781. Filed for public inspection September 25, 2009, 9:00 a.m.]
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