RULES AND REGULATIONS
Title 49—PROFESSIONAL AND VOCATIONAL STANDARDS
STATE BOARD OF CHIROPRACTIC
[ 49 PA. CODE CH. 5 ]
Continuing Education Violations
[41 Pa.B. 2845]
[Saturday, June 4, 2011]The State Board of Chiropractic (Board) amends § 5.77 (relating to failure to meet continuing education requirements) to read as set forth in Annex A.
Description and Need for the Rulemaking
Section 507(a) of the Chiropractic Practice Act (act) (63 P. S. § 625.507(a)) requires each licensee to complete at least 24 hours of continuing education during each biennial renewal period. Under section 506(a)(13) of the act (63 P. S. § 625.506(a)(13)), the Board may take disciplinary action against a licensee who fails to perform any statutory obligation placed upon a licensed chiropractor. Section 703 of the act (63 P. S. § 625.703) authorizes the Board to levy a civil penalty of up to $1,000 on a licensee who violates any provision of the act. Disciplinary actions for failing to complete the continuing education requirement in a timely manner invariably result in the licensee being required to pay a civil penalty proportionate to the amount of deficiency and to make up the deficiency promptly. Accordingly, the Board proposed to utilize the more streamlined procedures under section 5(a) of the act of July 2, 1993 (P. L. 345, No. 48) (Act 48) (63 P. S. § 2205(a)), wherein the Commissioner of Professional and Occupational Affairs, after consultation with licensing boards in the Bureau of Professional and Occupational Affairs (BPOA), may promulgate a schedule of civil penalties for violations of the acts or regulations of these licensing boards.
The Board proposed permitting a licensee to renew despite not having completed the required amount of continuing education. However, the licensee would be required to pay a civil penalty by citation in § 43b.22 (related to schedule of civil penalties—chiropractors) and to make up the deficient hours of continuing education and to provide proof to the Board within 6 months of the beginning of the renewal cycle. A licensee who does not do so will be subject to discipline under section 506(a)(9) of the act, which authorizes the Board to discipline a licensee for violating a regulation of the Board. Second and subsequent violations of failing to complete all required continuing education will be subject to formal action.
Summary of Comments and Responses to Proposed Rulemaking
The Board published notice of proposed rulemaking at 39 Pa.B. 5594 (September 26, 2009) with a 30-day public comment period. The Board did not receive written comments from the public. The Board received comments from the House Professional Licensure Committee (HPLC) and the Independent Regulatory Review Commission (IRRC) as part of its review of proposed rulemaking under the Regulatory Review Act (71 P. S. §§ 745.1—745.12). The Board did not receive comment from the Senate Consumer Protection and Professional Licensure Committee (SCP/PLC).
In developing this final-form rulemaking, the Board envisioned a scheme of enforcement by which a licensee who did not complete the required amount of continuing education would be able to renew the license but would have to pay a civil penalty under an Act 48 schedule based upon the amount of deficiency and to make up the entire deficiency within 6 months. It was intended that all professional licensing boards within the BPOA that require continuing education would use a similar enforcement scheme. However, due to subsequently-raised concerns about statutory authority to renew the license of one who acknowledges not having completed the required amount of continuing education, the Board ultimately has abandoned this scheme. Instead, completion of the required amount of continuing education will remain a condition of renewal and a licensee who acknowledges not having completed the required amount of continuing education will not be renewed. Those licensees who are discovered, such as through the postrenewal random audit, to have failed to complete the required amount of continuing education will be subject to imposition of a proportionate civil penalty by means of a citation and will be required to make up the deficiency. However, because it will take time to complete the post-renewal audit process, the time limitation by which the deficiency shall be cured will not be determined by the renewal date, but by the date disciplinary action is initiated by the issuance of a citation. Because continuing education is required to maintain competence, the failure to complete continuing education is not a violation if the licensee no longer practices until the continuing education deficiency is cured. Therefore, the Board has also provided in § 5.77(d) that a licensee who permits the license to expire and then ceases practice until completing the required amount of continuing education and then reactivates the license upon a demonstration that the deficiency has been cured should not be subject to disciplinary action for failing to initially complete the required amount of continuing education. A licensee who did not renew and continued to practice, despite having failed to complete the required continuing education, would be subject to disciplinary action both for failing to complete continuing education (under this subsection) and for practicing while the license was lapsed (under § 5.17(g) (relating to biennial registration; unregistered status and inactive status; failure to renew; address of record)).
The HPLC first requested an explanation for the jeopardy of a licensee who has not completed continuing education having to certify on the biennial renewal form that the licensee has complied with the mandatory continuing education requirements. As previously discussed, the Board will not renew the license of a licensee who has acknowledged failing to complete the required amount of continuing education. The HPLC also questioned whether a licensee who falsely states on the renewal form that the licensee has completed the continuing education requirement would be disciplined for practicing fraud or deceit in obtaining a license to practice chiropractic. A licensee who makes a false statement would be discovered through the audit process. A prosecuting attorney would have discretion to bring formal disciplinary action in deviation from application of the Act 48 schedule due to the licensee's apparent deceitful act, charging both the failure to complete continuing education and obtaining the license by deceit. The Board would determine an appropriate sanction, possibly including a reprimand or suspension as well as a civil penalty, for any violation that is proved. But, in the exercise of prosecutorial discretion, the prosecuting attorney alternatively could choose only to issue the appropriate citation, such as when the licensee in good faith believed that the licensee had complied with the continuing education requirement.
The HPLC next requested an explanation as to how a licensee would make up a continuing education deficiency after renewing, but shall provide proof of attendance at continuing education courses during the previous biennial renewal period. In drafting this provision, it was the Board's intention to refer to the continuing education requirement of the previous biennium, not attendance during the previous biennium. The Board revised this provision to phrase this more clearly and to explicitly acknowledge that continuing education may be completed in the current biennium, subject to the limitation of § 5.77(b) that attendance at continuing education to reactivate an unregistered license cannot be applied to the requirement for the current biennium.
Finally, because when published as proposed the Board intended to renew the license of a licensee who had not completed the required amount of continuing education subject to imposition of a civil penalty via citation and the obligation to make up the deficiency within 6 months, the HPLC asked how the Board will monitor the grace period during which a licensee shall make up a deficiency in continuing education. As previously discussed, the Board has chosen to abandon this method of enforcement. Instead, the Board will continue the current practice under which a licensee shall verify that the licensee has complied with the continuing education requirements. If the licensee does not verify completion, the Board will not renew the license and, without license renewal, there is not a grace period to monitor. However, as past audits have demonstrated, some licensees who have verified compliance will not have actually completed the required amount of continuing education. As previously discussed, these licensees will be subject to citation and the obligation to cure the deficiency within 6 months of issuance of the citation. Because legal proceedings have begun, the legal office will track cited licensees for submission of proof of completion of the required amount of continuing education.
IRRC shared the concerns expressed by the HPLC as previously described. IRRC correctly noted that the only reference to continuing education in § 5.14 (relating to certification to use adjunctive procedures) concerns initial qualification to be certified to use adjunctive procedures, not any ongoing continuing education requirement. Accordingly, the Board has revised § 5.77(d) to omit the reference to § 5.14.
Fiscal Impact and Paperwork Requirements
The final-form rulemaking will not have an adverse fiscal impact on the Commonwealth, its political subdivisions or the private sector. The final-form rulemaking will not impose additional paperwork requirements upon the Commonwealth, its political subdivisions or the private sector.
Effective Date
The final-form rulemaking will become effective upon publication in the Pennsylvania Bulletin.
Statutory Authority
This rulemaking is authorized by section 302(3) of the act (63 P. S. § 625.302(3)) and sections 506(a)(9) and 507(a) of the act.
Regulatory Review
Under section 5(a) of the Regulatory Review Act (71 P. S. § 745.5(a)), on September 11, 2009, the Board submitted a copy of the notice of proposed rulemaking, published at 39 Pa.B. 5594, 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 Board has considered all comments from IRRC, the HPLC, the SCP/PLC and the public.
On September 3, 2010, the Board delivered final-form rulemaking to IRRC, the HPLC and the SCP/PLC. Under section 5.1(j.2) of the Regulatory Review Act (71 P. S. § 745.5a(j.2)), on September 21, 2010, the final-form rulemaking was approved by the HPLC. On October 6, 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 October 7, 2010, and disapproved the final-form rulemaking. As described in its disapproval order, IRRC disapproved the rulemaking because it concluded that the Board does not have statutory authority to renew the license of a licensee who acknowledged failing to complete the required amount of continuing education, as previously intended.
In response to IRRC's disapproval, the Board revised the final-form rulemaking to remove the provisions for renewal despite failure to complete required continuing education, resulting in the final-form rulemaking as discussed previously. The Board delivered the revised final-form rulemaking, together with the supporting report required by section 7(c) of the Regulatory Review Act (71 P. S. § 745.7(c)), to IRRC, the HPLC and the SCP/PLC on November 24, 2010.
Under section 7(d) of the Regulatory Review Act, on March 1, 2011, the final-form rulemaking was deemed approved by the HPLC and the SCP/PLC. Under section 7(c.1) of the Regulatory Review Act, IRRC met on December 16, 2010, and approved the final-form rulemaking.
Additional Information
Persons who require additional information about the final-form rulemaking should submit inquiries to Regulatory Unit Counsel, Department of State, P. O. Box 2649, Harrisburg, PA 17105-2649, (717) 783-7200, st-chiro@ 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) and 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 this final-form rulemaking do not enlarge the scope of proposed rulemaking published at 39 Pa.B. 5594.
(4) The final-form rulemaking adopted by this order is necessary and appropriate for the administration of the act.
Order
The Board, acting under its authorizing statute, orders that:
(a) The regulations of the Board, 49 Pa. Code Chapter 5, are amended by amending § 5.77 to read as set forth in Annex A.
(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.
KATHLEEN G. MCCONNELL, DC,
Chairperson(Editor's Note: See 41 Pa.B. 2856 (June 4, 2011) for the BPOA's final-form rulemaking relating to this final-form rulemaking.)
(Editor's Note: For the text of the order of the Independent Regulatory Review Commission relating to this document, see 41 Pa.B. 118 (January 1, 2011).)
Fiscal Note: Fiscal Note 16A-4318 remains valid for the final 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 5. STATE BOARD OF CHIROPRACTIC
Subchapter G. CONTINUING EDUCATION § 5.77. Failure to meet continuing education requirements.
(a) Unless granted a waiver, a licensee who fails to satisfy continuing education requirements for a biennial registration period will have his license classified as unregistered and will be prohibited from practicing chiropractic until the licensee satisfies continuing education requirements and renews registration in accordance with § 5.18 (relating to reporting of other licenses, certificates or authorizations to practice, disciplinary sanctions and criminal dispositions).
(b) A licensee attending a continuing education course to reinstate an unregistered license will not have the same credit hours applied toward the continuing education requirement for the next biennial registration period.
(c) A licensee is not required to satisfy continuing education requirements for a biennial period in which a license has been classified as inactive and the licensee has not practiced in this Commonwealth for the entire biennial period.
(d) Unless otherwise excused by the act or this chapter, a licensee who fails to complete the minimum required amount of continuing education during the applicable renewal period is subject to discipline under § 43b.22 (relating to schedule of civil penalties—chiropractors). Within 6 months after the issuance of a citation under § 43b.22 for failing to complete the required amount of continuing education, the licensee shall make up the deficiency and provide proof of attendance at continuing education courses as necessary to satisfy the requirements in section 507 of the act (63 P. S. § 625.507) for the previous biennial registration period. The additional continuing education may be completed during the current biennial registration period, subject to the limitation of subsection (b). In addition to any civil penalty assessed under this subsection, failure to provide the Board with proof of the required amount of continuing education within 6 months after the issuance of a citation under § 43b.22 for failing to complete the required amount of continuing education shall subject the licensee to disciplinary action under section 506(a)(9) of the act (63 P. S. § 625.506(a)(9)). Failure to complete all of the required amount of continuing education within 6 months after the issuance of a citation under § 43b.22 for failing to complete the required amount of continuing education shall subject the licensee to disciplinary action under section 506(a)(13) of the act. This subsection does not apply to a licensee who permitted the license to expire at the conclusion of the biennial renewal period for which the licensee did not complete the required amount of continuing education and did not practice the profession prior to reactivating that license under § 5.17(j) (relating to biennial registration; unregistered status and inactive status; failure to renew; address of record) upon a demonstration that the licensee subsequently completed all required deficient continuing education.
[Pa.B. Doc. No. 11-935. Filed for public inspection June 3, 2011, 9:00 a.m.]
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