RULES AND REGULATIONS
STATE BOARD OF EXAMINERS OF NURSING HOME ADMINISTRATORS
[ 49 PA. CODE CH. 39 ]
Temporary Permits
[40 Pa.B. 3092]
[Saturday, June 12, 2010]The State Board of Examiners of Nursing Home Administrators (Board) amends §§ 39.1 and 39.4 (relating to definitions; and admission to practice; temporary permits) to read as set forth in Annex A.
The final-form rulemaking amends the Board's regulations regarding the issuance of temporary permits. Under the Nursing Home Administrators License Act (act) (63 P. S. §§ 1101—1114.2), the Board may issue a permit to an individual to serve as a nursing home administrator up to 1 year in the event of unusual circumstances such as the death, disability, resignation or dismissal of the licensed administrator.
The final-form rulemaking amends the definition of ''temporary permit'' in § 39.1 to clarify that only an individual may hold a permit and that the holder of a permit is authorized to serve as administrator only in the particular nursing home specified on the permit application. The final-form rulemaking also amends § 39.4 to clarify that the holder of a temporary permit who meets the education and experience requirements for licensure may apply to sit for the nursing home administrators licensing examination; that a temporary permit will not be issued to an applicant who has failed a part of the licensing examination; that a temporary permit becomes void if the holder fails a part of the licensing examination or the nursing home obtains the services of a licensed administrator; and that the holder of a temporary permit shall immediately notify the Board of an event that voids the permit and return the permit to the Board.
Statutory Authority
The final-form rulemaking is authorized under section 14 of the act (63 P. S. § 1114), which empowers the Board to issue temporary permits, and section 4(c) of the act (63 P. S. § 1104(c)), which empowers the Board to adopt regulations as are necessary for the performance of its statutory duties.
Summary of Comments and Responses to Proposed Rulemaking
The Board published the proposed rulemaking at 38 Pa.B. 1168 (March 8, 2008) with a 30-day public comment period. The Board received a general comment in support of the proposed rulemaking from the Pennsylvania Association of County Affiliated Homes.
The Board received comments from the Independent Regulatory Review Commission (IRRC) and the House Professional Licensure Committee (HPLC) as part of their review of proposed rulemaking under the Regulatory Review Act (71 P. S. §§ 745.1—745.12). The Board did not receive comments from the Senate Committee on Consumer Protection and Professional Licensure (SCP/PLC) as part of its review of proposed rulemaking under the Regulatory Review Act.
§ 39.1. Definitions.
The proposed definition of ''temporary permit'' in § 39.1 provided as follows: ''A permit issued by the Board which authorizes a person not licensed by the Board to serve as a nursing home administrator only in the particular facility indicated on the permit application for up to 1 year in the event of unusual circumstances affecting the administration of a nursing home, such as the death, disability, resignation or dismissal of the licensed administrator or other emergency as determined by the Board.''
The HPLC recommended that the definition of ''temporary permit'' be revised by substituting the word ''individual'' for ''person.'' The HPLC noted that the word ''person'' is defined in 1 Pa.C.S. § 1991 (relating to definitions) to include entities such as a corporation and a limited liability company. Because a licensed nursing home administrator can only be an individual, not an entity, the Board agrees that the definition should be clarified to reflect that the holder of a temporary permit to serve as a nursing home administrator must be an individual. Accordingly, the final-form rulemaking incorporates the HPLC's recommendation.
§ 39.4. Admission to practice; temporary permits.
The proposed rulemaking made an editorial change to § 39.4(3)(ii), which, as proposed, provided that the issuance of a temporary permit will not be construed to mean that the holder qualifies to sit for the nursing home administrators licensing examination.
The HPLC commented that while it understands that the mere possession of a temporary permit does not automatically qualify an individual to sit for the licensing examination, it recommended that § 39.4(3)(ii) be revised to clarify that a temporary permit holder who otherwise satisfies the requirements for admission to the licensing examination be allowed to do so. The Board agrees that this clarification is warranted. The final-form rulemaking further revises § 39.4(3)(ii) to provide that a temporary permit holder who meets the education and experience requirements in § 39.5(b) (relating to requirements for admission to licensing examination; examination procedures) may apply to sit for the licensing examination.
§ 39.17. Policy statement regarding temporary permits.
Proposed § 39.17 sets forth a statement of policy with regard to the issuance of temporary permits. The first sentence of current § 39.17 provides that the Board will not issue temporary permits to applicants who wish to fill positions that have been vacated for reasons such as promotions and transfers. The second sentence of current § 39.17 provides that the Board will not extend or reissue temporary permits to individuals who fail the nursing home administrators licensing examination.
The proposed rulemaking reorganized § 39.17 into two subsections. The proposed rulemaking labeled the first sentence as subsection (a) and clarified that the referenced vacancies resulted from intracompany promotions and transfers. The proposed rulemaking deleted the second sentence of current § 39.17 in favor of adding new binding requirements in § 39.4(3)(iii) and (vi) that prohibit the issuance of a temporary permit to an applicant who failed a part of the nursing home administrators licensing examination and that void a temporary permit if the holder failed a part of the examination. The proposed rulemaking added subsection (b), which provided that the issuance of a temporary permit is not intended to create a suitable candidate for licensure and that the Board will not consider experience gained in the practice of nursing home administration while serving under a temporary permit as counting toward the requirements in § 39.5 for admission to the licensing examination.
IRRC commented that inasmuch as a statement of policy, being a nonbinding norm, is not subject to the Regulatory Review Act, the Board should not include § 39.17 as part of its final-form rulemaking unless the Board intends to rescind § 39.17 and to relocate the remaining contents of the policy statement to § 39.4 where they would have binding effect as a regulation. The Board intends to retain a revised version of § 39.17 as a statement of policy. Accordingly, the final-form rulemaking does not include § 39.17. The Board will separately publish amendments to § 39.17 that are consistent with the final-form rulemaking.
The HPLC recommended that revised § 39.17 should not contain language in the proposed rulemaking stating that the issuance of a temporary permit is not intended to create a suitable candidate for licensure. The HPLC said the proposed language was unnecessary because a candidate for licensure shall demonstrate his suitability and that it is implicit that a candidate's tenure as a temporary permit holder does not establish suitability. The Board believes that the proposed language is useful because it provides reinforcement to prospective candidates for licensure that service as an interim administrator under authority of a temporary permit does not confer advantage toward becoming a licensed administrator.
Disciplinary Process
The HPLC asked the Board to provide information about the following: (1) how often the Board prosecutes or takes disciplinary action against temporary permit holders; (2) what are the bases for disciplinary action against permit holders; (3) what are the costs associated with taking disciplinary action against permit holders; and (4) whether disciplinary action taken against licensed administrators is the same as that taken against permit holders.
A temporary permit holder has never been the subject of a disciplinary proceeding before the Board. The Board would likely interpret the disciplinary provisions in sections 11 and 12 of the act (63 P. S. §§ 1111 and 1112) as applicable with equal force to both licensees and permit holders. If disciplinary action were taken against a permit holder in the future, the cost of the action would depend on the circumstances of the case. In any event, the cost of particular disciplinary action is defrayed by biennial renewal fees.
Fiscal Impact and Paperwork Requirements
The final-form rulemaking will not have an adverse fiscal impact on the regulated community, the general public or the Commonwealth and its political subdivisions.
The final-form rulemaking will not impose additional paperwork requirements on the regulated community, the general public or the Commonwealth and its political subdivisions.
Effective Date
The final-form rulemaking will be effective upon publication in the Pennsylvania Bulletin.
Regulatory Review
Under section 5(a) of the Regulatory Review Act (71 P. S. § 745.5(a)), on February 27, 2008, the Board submitted a copy of the notice of proposed rulemaking, published at 38 Pa.B. 1168, to IRRC and to 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 April 21, 2010, the final-form rulemaking was approved by the HPLC. On May 12, 2010, the final-form rulemaking was deemed approved by the SCP/PLC. Under section 5.1(e) of the Regulatory Review Act, IRRC met on May 13, 2010, and approved the final-form rulemaking.
Additional Information
Persons who require additional information about the final-form rulemaking should submit inquiries to Christina Stuckey, Administrator, State Board of Examiners of Nursing Home Administrators, P. O. Box 2649, Harrisburg, PA 17105-2649, (717) 783-7155, ST-NHA@state.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) The amendments to the final-form rulemaking do not enlarge the original purpose of the proposed rulemaking published at 38 Pa.B. 1168.
(4) The final-form rulemaking adopted by this order is necessary and appropriate for the administration of the act.
Order
The Board, acting under authority of the act, orders that:
(a) The regulations of the Board, 49 Pa. Code Chapter 39, are amended by amending §§ 39.1 and 39.4 to read as set forth in Annex A, with ellipses referring to the existing text of the regulations.
(b) The Board shall submit this order and Annex A to the Office of Attorney General and the Office of General Counsel for approval 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) The final-form rulemaking shall take effect upon publication in the Pennsylvania Bulletin.
ROBERT A. ETCHELLS,
Chairperson(Editor's Note: For the text of the order of the Independent Regulatory Review Commission relating to this document, see 40 Pa.B. 2838 (May 29, 2010).)
Fiscal Note: Fiscal Note 16A-629 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 39. STATE BOARD OF EXAMINERS OF NURSING HOME ADMINISTRATORS
GENERAL § 39.1. Definitions.
The following words and terms, when used in this chapter, have the following meanings, unless the context clearly indicates otherwise:
* * * * * Temporary permit—A permit issued by the Board which authorizes an individual not licensed by the Board to serve as a nursing home administrator only in the particular facility indicated on the permit application for up to 1 year in the event of unusual circumstances affecting the administration of a nursing home, such as the death, disability, resignation or dismissal of the licensed administrator or other emergency as determined by the Board.
§ 39.4. Admission to practice; temporary permits.
Admission to the practice of nursing home administration in this Commonwealth will be granted by the Board as follows:
(1) By the issuance of a license by examination to an applicant who meets the requirements in section 6 of the act (63 P. S. § 1106) and in this chapter.
(2) By the issuance of a license by endorsement to an applicant who has been licensed by examination in another state of the United States, if the applicant meets the requirements in section 10 of the act (63 P. S. § 1110) and of this chapter.
(3) By issuance of a temporary permit to an applicant who meets the requirements in section 14 of the act (63 P. S. § 1114) and in this chapter. The issuance of a temporary permit is subject to the following conditions:
(i) A temporary permit entitles the holder to serve in an emergency as a nursing home administrator only in the particular facility indicated on his application, and is valid for a period as determined by the Board, not to exceed 1 year from the date of issuance, and may not be thereafter renewed or continued.
(ii) The issuance of a temporary permit will not be construed to mean that the holder qualifies to sit for the nursing home administrators licensing examination. However, if the holder meets the education and experience requirements in § 39.5(b) (relating to requirements for admission to licensing examination; examination procedures), the holder may apply to sit for the nursing home administrators licensing examination.
(iii) The Board will not issue a temporary permit to an applicant who has failed to pass any part of the nursing home administrators licensing examination.
(iv) Public notice of the issuance of a temporary permit will be given by the Board in accordance with 45 Pa.C.S. §§ 301—310 (relating to Newspaper Advertising Act), with the cost of advertising the notice to be paid by the holder of the temporary permit. The public notice concerning the temporary permit will be advertised in a daily newspaper published in the county where the nursing home is located, once a week for 3 consecutive weeks, and will contain the following information: the name and address of the holder of the temporary permit, the name and address of the nursing home which the holder of the temporary permit is permitted to serve, the reason for the issuance of the temporary permit, the period for which the temporary permit is issued, the date the temporary permit expires and other information the Board may require as relevant.
(v) Prior to the issuance of a temporary permit, the applicant shall appear before the Board accompanied by the manager, owner or representative of the governing body of the facility in which the applicant will be acting as a nursing home administrator if the permit is issued.
(vi) A temporary permit becomes void if either the holder fails to pass any part of the nursing home administrators licensing examination or the facility obtains the services of a licensed nursing home administrator and the holder must cease performing his duties as a temporary nursing home administrator immediately upon the occurrence of either event.
(vii) The temporary permit holder shall notify the Board and immediately return the temporary permit to the Board if the holder fails to pass any part of the nursing home administrators licensing examination or when the facility obtains the services of a licensed nursing home administrator.
[Pa.B. Doc. No. 10-1072. Filed for public inspection June 11, 2010, 9:00 a.m.]
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