RULES AND REGULATIONS
BUREAU OF PROFESSIONAL AND OCCUPATIONAL AFFAIRS
[ 49 PA. CODE CH. 43b ]
Schedule of Civil Penalties—Chiropractors
[41 Pa.B. 2856]
[Saturday, June 4, 2011]The Commissioner of Professional and Occupational Affairs (Commissioner) adds § 43b.22 (relating to schedule of civil penalties—chiropractors) to read as set forth in Annex A.
Description and Need for the Final-Form Rulemaking
The act of July 2, 1993 (P. L. 345, No. 48) (Act 48) authorizes agents of the Bureau of Professional and Occupational Affairs (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 State Board of Chiropractic (Board) has not previously had an Act 48 schedule of civil penalties.
Section 507(a) of the Chiropractic Practice Act (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. The Board's regulations in Chapter 5, Subchapter G (relating to continuing education) implement required continuing education. With the current regulatory scheme, a failure to comply with the continuing education requirements could lead to formal disciplinary action. Also, section 501(b) of the act (63 P. S. § 625.501(b)) requires a licensee to renew the license every 2 years. Under § 5.17(g) (relating to biennial registration; unregistered status and inactive status; failure to renew; address of record) of the Board's regulations, a licensee who has not renewed may not continue to practice while that license remains lapsed. As is being done for other licensing boards, the Commissioner proposed a civil penalty schedule for violation of the continuing education requirements for licensees of the Board and practice on a lapsed license because the Commissioner and the 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.
The Commissioner, in consultation with the Board, proposed 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. A separate final-form rulemaking (16A-4318) published by the Board requires that licensees also make up the deficiency within 6 months or face formal disciplinary action.
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. The Commissioner therefore also proposed for a first offense violation of practicing on a lapsed license while in compliance with continuing education and professional liability insurance requirements a civil penalty of $250 for practicing less than 6 months, $500 for practicing 6 to 12 months and $1,000 for practicing 12 to 24 months. Second and subsequent offenses, as well as those for more than the biennial renewal period of 24 months, would not be subject to an Act 48 citation but rather would proceed through the formal disciplinary process.
Summary of Comments and Responses to Proposed Rulemaking
The Board published notice of proposed rulemaking at 39 Pa.B. 5580 (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 comments from the Senate Consumer Protection and Professional Licensure Committee (SCP/PLC).
The HPLC first questioned how the amounts of the civil penalties were determined to assure that the goals are achieved. The maximum civil penalty that the Board may impose for a violation of the act or Board regulations is $1,000. To provide a significant deterrence against failing to complete continuing education in a timely manner, the Board concluded that this maximum amount is an appropriate civil penalty for a licensee who completes none of the required continuing education. Those whose deficiency is less should be assessed a proportionately lesser civil penalty. Because 24 hours of continuing education are required, the Board calculated that the scheduled civil penalty should be $1,000 divided by 24 hours, rounded up to $50 per hour. Similarly, the Board concluded that a licensee who practices for most of a renewal cycle on a lapsed license should also be levied the maximum civil penalty of $1,000, with lesser periods of lapsed license practice being assessed a proportionately lesser civil penalty. These scheduled civil penalties are consistent with those historically imposed by the Board.
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 by means of a citation and the obligation to make up the deficiency within 6 months, the HPLC also 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. Similarly, the HPLC asked how the Board will monitor the grace period during which a licensee shall make up a deficiency in continuing education. The Board chose 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 may not have actually completed the required amount of continuing education. 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.
The HPLC next requested an explanation for choosing not to include on the schedule a second offense of practice on a lapsed license in compliance with continuing education and professional liability insurance requirements. The Board chose to retain formal action as the means to address these repeat offenders who should have learned from the experience of the first Act 48 citation to renew the license timely or cease practice. The Board notes that the State Board of Barber Examiners (§ 43b.4), the State Board of Cosmetology (§ 43b.5), the State Board of Funeral Directors (§ 43b.6), the State Real Estate Commission (§ 43b.8), the State Board of Accountancy (§ 43b.10), the State Registration Board for Professional Engineers, Land Surveyors and Geologists (§ 43b.13a), the State Board of Dentistry (§ 43b.14a), the State Board of Certified Real Estate Appraisers (§ 43b.15), the State Board of Examiners in Speech-Language and Hearing (§ 43b.16), the State Board of Examiners of Nursing Home Administrators (§ 43b.17) and the State Board of Nursing (§ 43b.18a) all provide for formal action for a second offense violation of practice on a lapsed license. The State Board of Auctioneer Examiners (§ 43b.12a) first provides for formal action for a third offense violation of practice on a lapsed license. The State Board of Pharmacy (§§ 43b.7 and 43b.7a), the State Architects Licensure Board (§ 43b.11a), the State Board of Occupational Therapy Education and Licensure (§ 43b.19) and the State Board of Veterinary Medicine (§ 43b.21) include practice on a lapsed license in their schedules of civil penalties but do not distinguish among first or any subsequent offenses. No other licensing board within the Bureau provides for an Act 48 citation for a second lapsed license practice offense. The State Board of Vehicle Manufacturers, Dealers and Salespersons (§ 43b.9) and the State Board of Medicine (§ 43b.20) do not include practice on a lapsed license on their schedules of civil penalties, therefore, even first offenses are subject to formal action.
IRRC shared the concerns expressed by the HPLC as previously described.
Fiscal Impact and Paperwork Requirements
The final-form rulemaking will not have 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 5(a) of Act 48 (63 P. S. § 2205(a)).
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. 5580, 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.
The Board did not revise the final-form rulemaking in response to IRRC's disapproval. The Board redelivered the final-form rulemaking, together with the supporting report required by section 7(b) of the Regulatory Review Act (71 P. S. § 745.7(b)), 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 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 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) 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 final-form rulemaking adopted by this order is necessary and appropriate for the administration of the act.
Order
The Commissioner, acting under Act 48, orders that:
(a) The regulations of the Commissioner, 49 Pa. Code Chapter 43b, are amended by adding § 43b.22 to read as set forth in Annex A.
(b) The Bureau 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 Bureau 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.
KATIE TRUE,
Acting Commissioner(Editor's Note: See 41 Pa.B. 2845 (June 4, 2011) for the Board'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 16-44 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 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
educationFirst offense—$50 per hour of
deficiency, not to exceed $1,000
Subsequent offense—formal action
Violation Under 49 Pa. Code Chapter 5 Title/Description Penalties Section 5.17(g) Practice on a lapsed license in
compliance with continuing
education and malpractice insurance
requirements—first offenseLess than 6 months—$250
6 months to 12 months—$500
12 months to 24 months—$1,000
[Pa.B. Doc. No. 11-938. Filed for public inspection June 3, 2011, 9:00 a.m.]
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