PROPOSED RULEMAKINGS
STATE BOARD OF CHIROPRACTIC
[ 49 PA. CODE CH. 5 ]
Licensure by Reciprocity
[41 Pa.B. 4958]
[Saturday, September 17, 2011]The State Board of Chiropractic (Board) proposes to amend § 5.13 (relating to licensure by reciprocity) to read as set forth in Annex A.
Effective Date
This proposed rulemaking will be effective upon final-form publication in the Pennsylvania Bulletin.
Statutory Authority
This proposed rulemaking is authorized under sections 302(3) and 504 of the Chiropractic Practice Act (act) (63 P. S. §§ 625.302(3) and 625.504).
Background and Need for the Amendment
Section 504 of the act authorizes the Board to grant a license without further examination to an individual from another state or a province of Canada if: (1) the standards for licensing in that jurisdiction are substantially the same as those provided in the act; (2) that jurisdiction accords similar privileges to persons licensed in this Commonwealth; (3) the applicant holds a valid license in that jurisdiction; and (4) the applicant complies with applicable regulations of the Board. Under section 501(a) of the act (63 P. S. § 625.501(a)), the standards for licensure in this Commonwealth include graduation from an approved chiropractic school and passing the required licensure examinations, which as specified in § 5.12(a)(2) (relating to licensure by examination) are parts I, II, III and IV of the National Board Examination (NBE). Section 5.13(a) currently requires an applicant for licensure by reciprocity to have graduated from chiropractic school, passed clinical and written examinations acceptable to the Board, passed parts I and II of the NBE or another written licensure examination acceptable to the Board and hold a current and valid unrestricted license to practice chiropractic in another jurisdiction that meets the standard in section 504 of the act. Additionally, § 5.13(c) requires that the applicant ''is currently engaged in active practice and has been so continually for at least 1 year immediately preceding the date of the application, in the [jurisdiction] of the license on the basis of which the applicant is seeking a license in this Commonwealth by reciprocity.''
The standards for licensure have changed over time. For example, prior to 1992 the Board did not require an applicant to have passed part III of the NBE and before 1997 the Board did not require part IV of the NBE. Other states have similarly revised their standards for licensure. Section 504 of the act does not make clear whether the standards for licensure to be compared should be the current standards or those at the time the applicant was first licensed to practice chiropractic. The Board has received applications for licensure by reciprocity from out-of-State chiropractors who met the Pennsylvania standards at the time of graduation from chiropractic school and licensure in the other jurisdiction, but not the current standard. If the current standards are compared and the other state has not similarly added to its requirements, the applicant would not qualify. But if the other state has similarly added to its requirements, the applicant would qualify for licensure in this Commonwealth. It does not seem appropriate to base the determination of whether an applicant is qualified for licensure upon changes in legal standards subsequent to that applicant demonstrating qualification for licensure to practice chiropractic that would have met the Pennsylvania standards at that time. Additionally, had the applicant chosen to apply for licensure in this Commonwealth in addition to or rather than the other jurisdiction at the time of first licensure, the applicant who then met the Pennsylvania standards would have become licensed and would still be permitted to practice in this Commonwealth despite the subsequent change in Pennsylvania standards. A system that bases the determination upon comparison of current standards may shut out an applicant who holds qualifications identical to those of Pennsylvania licensees who became licensed here first and are permitted to continue practicing.
Accordingly, the Board proposes to amend the regulation concerning licensure by reciprocity to base the determination upon the standards for licensure at the time of graduation from chiropractic school and first licensure, rather than the current standards.
Moreover, for ease of understanding and application of the regulation, the Board proposes to express those standards in terms of the applicant's qualifications, rather than directly comparing the jurisdiction's standards each time. While the Board can determine what its standards for licensure have been historically, it is difficult for the Board to determine the standards for licensure in another jurisdiction, especially with the moving target of standards at a particular time. Although the Board could put the burden on the applicant to demonstrate what the standards of licensure were at the time of licensure in another jurisdiction, it is doubtful that nonlawyer applicants in an administrative proceeding would be competent to meet that burden. The concept behind licensure by reciprocity is that because the applicant has already demonstrated that the applicant met standards that were substantially equal to the Pennsylvania standards, the applicant by definition had to have also met the standards for licensure in this Commonwealth. To take that another step further, if the applicant who met the Pennsylvania standards became licensed by examination in the other jurisdiction, the Board infers that the other jurisdiction's standards were substantially similar to the then-existing Pennsylvania standards. Expressing the requirements for licensure by reciprocity in terms of the applicant's qualifications in light of the historic Pennsylvania standards would make the process much simpler and straightforward and would put potential applicants on notice of what qualifications shall be demonstrated for licensure.
Description of the Proposed Amendments
The proposed rulemaking would first address the examinations required in § 5.13(a). Because the first two parts of the NBE have been the standard since 1968, § 5.13(a)(2) would be revised to make clear that alternative ''clinical and written examinations acceptable to the Board'' are required for those who graduated before 1968 and cannot rely on the NBE. Section 5.13(a)(3) would be revised to require successful completion of the NBE. Proposed § 5.13(a)(3)(i) would require parts I and II of the NBE for applicants who graduated after January 1, 1968. The Board first required successful completion of part III of the NBE effective December 28, 1991. See 21 Pa.B. 5944 (December 28, 1991). Accordingly, proposed § 5.13(a)(3)(ii) would also require part III of the NBE for applicants who graduated or were first licensed after December 27, 1991. The Board first required successful completion of part IV of the NBE effective May 24, 1997. See 27 Pa.B. 2540 (May 24, 1997). Accordingly, proposed § 5.13(a)(3)(iii) would also require part IV of the NBE for applicants who graduated or were first licensed after May 23, 1997.
Currently, § 5.13(a)(4) requires the applicant to have ''a current and valid unrestricted license to practice chiropractic in another state . . . whose standards for licensure are substantially equivalent to those required by the act and [Board regulations] for licensure and which accepts Pennsylvania licensees for licensure by reciprocity.'' Because licensure by reciprocity is to avoid the need for additional examinations and relies upon the standards for licensure in the jurisdiction that licensed the applicant by examination, the proposed rulemaking would amend § 5.13(a)(4) to require that the license in the other jurisdiction have been obtained by examination. Because section 504 of the act requires only that the license in the other state be valid and not that it be ''current and valid'' and because an applicant for licensure by reciprocity may very well have also been practicing under a license by reciprocity in another jurisdiction subsequent to initial licensure, the proposed rulemaking would also delete from § 5.13(a)(4) the requirement that the license in the other jurisdiction be current. This does not eliminate the requirement that the license be valid, meaning that it is not suspended, revoked or otherwise restricted. Additionally, the phrase ''which accepts Pennsylvania licensees for licensure by reciprocity'' is intended to convey the requirement in section 504(2) of the act that ''similar privileges [for licensure by reciprocity] are accorded persons licensed in this Commonwealth.'' Because this phrase is not well understood and by itself does not convey the standards by which to do so, the Board proposes to replace it with the following: ''which licenses by reciprocity chiropractors licensed in another jurisdiction whose standards for licensure are substantially equivalent to those required in that jurisdiction.''
Proposed § 5.13(a)(5) would include a minimum practice requirement. Current § 5.13(c) requires the applicant to submit an affidavit that the applicant ''is currently engaged in active practice and has been so continually for at least 1 year immediately preceding the date of the application, in the [jurisdiction] of the license on the basis of which the applicant is seeking a license in this Commonwealth by reciprocity.'' This provision was intended to assure some minimum level of experience, as well as to deter an applicant from too quickly fleeing one jurisdiction for another in a way that might avoid detection of professional misconduct. However, because it is reasonable for a practitioner to leave the jurisdiction of initial licensure, there is no reason to require that the applicant be actively practicing in that original jurisdiction as of the date of application here and for at least 1 year beforehand. Instead, proposed § 5.13(a)(5) would require only that the applicant has actively practiced in that jurisdiction for at least 12 months. Because a practitioner moving to a new jurisdiction may legitimately temporarily cease practicing, proposed § 5.13(a)(5) would require only that the applicant actively practice at least 20 months during the 24 months immediately preceding the date of application. Finally, because reciprocity in all practicality is for those practitioners who have been actively practicing, rather than newer graduates, proposed § 5.13(a)(5) would require that the applicant have been in active practice for at least 3 years. Current § 5.13(c) would be revised simply to provide that the applicant's verified statement of active clinical practice of chiropractic is adequate evidence of that practice in meeting this requirement for licensure by reciprocity.
Applicants for licensure by examination are required under § 5.15(a)(2) (relating to licensure examinations) to complete the Pennsylvania Chiropractic Law Examination. Because this examination is not part of the NBE, proposed § 5.13(a)(6) would require an applicant for licensure by reciprocity to successfully complete the Pennsylvania Chiropractic Law Examination.
Current § 5.13(b) requires an applicant to complete an application ''detailing the applicant's education and experience'' and submit that application ''at least 30 days prior to the next Board meeting.'' Because licensure by reciprocity also depends upon the applicant's examination and licensure in other jurisdictions, this subsection would be amended to require ''the applicant's education, examinations, licensure and experience.'' Additionally, because the Board staff reviews applications independent of Board meetings, there is no reason to impose the time restriction; therefore, the Board proposes to delete this clause.
Finally, current § 5.13(e) provides that the Board may require an interview with the applicant. Because the Board will review the application upon objective criteria and a provisional denial of the application entitles the applicant to appeal and request a hearing, this section is unnecessary. In its place, however, it is appropriate for the Board to explicitly note that an applicant for licensure by reciprocity, who by definition has been able to practice chiropractic in another jurisdiction, may be denied upon the grounds provided in section 506(a) of the act (63 P. S. § 625.506(a)), which provides that the Board may refuse to issue a license for any of a variety of enumerated reasons, including practice based reasons.
Fiscal Impact and Paperwork Requirements
The proposed rulemaking will not have adverse fiscal impact on the Commonwealth or its political subdivisions. The proposed rulemaking will not impose additional paperwork requirements upon the Commonwealth, political subdivisions or the private sector.
Sunset Date
The Board continuously monitors the effectiveness of its regulations. Therefore, a sunset date has not been assigned.
Regulatory Review
Under section 5(a) of the Regulatory Review Act (71 P. S. § 745.5(a)), on September 6, 2011, the Board submitted a copy of this proposed rulemaking and a copy of a Regulatory Analysis Form to the Independent Regulatory Review Commission (IRRC) and the Chairpersons of the House Professional Licensure Committee (HPLC) and the Senate Consumer Protection and Professional Licensure Committee (SCP/PLC). A copy of this material is available to the public upon request.
Under section 5(g) of the Regulatory Review Act, IRRC may convey comments, recommendations or objections to the proposed rulemaking within 30 days of the close of the public comment period. The comments, recommendations or objections must 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, suggestions or objections regarding this proposed rulemaking to Regulatory Unit Counsel, Department of State, P. O. Box 2649, Harrisburg, PA 17105-2649, st-chiro@state.pa.us within 30 days following publication of this proposed rulemaking in the Pennsylvania Bulletin. Reference No. 16A-4320 (licensure by reciprocity) when submitting comments.
JOSEPH T. GRICE, DC,
ChairpersonFiscal Note: 16A-4320. No fiscal impact; (8) recommends adoption.
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 B. LICENSURE, CERTIFICATION, EXAMINATION AND REGISTRATION PROVISIONS § 5.13. Licensure by reciprocity.
(a) An applicant for licensure by reciprocity shall present evidence of the following:
* * * * * (2) A passing score on clinical and written examinations acceptable to the Board, if the applicant graduated from chiropractic college prior to January 1, 1968.
(3) Passing scores on [Parts I and II] the following parts of the National Board Examination [in the basic and clinical sciences or a passing score on a written licensure examination acceptable to the Board.]:
(i) Parts I and II if the applicant graduated from chiropractic college after January 1, 1968.
(ii) Part III if the applicant graduated from chiropractic college after December 27, 1991, or was first licensed to practice chiropractic after December 27, 1991.
(iii) Part IV if the applicant graduated from chiropractic college after May 23, 1997, or was first licensed to practice chiropractic after May 23, 1997.
(4) [A current and valid] An unrestricted license to practice chiropractic obtained by examination in another state or territory of the United States or a province of Canada whose standards for licensure by examination are substantially equivalent to those required [by] under the act and this chapter for licensure and which [accepts Pennsylvania licensees for licensure by reciprocity] licenses by reciprocity chiropractors licensed in another jurisdiction whose standards for licensure are substantially equivalent to those required in that jurisdiction.
(5) Having engaged in the active clinical practice of chiropractic under a license in another state or territory of the United States or a province of Canada for at least 3 years, including at least 20 months of the 2 years immediately preceding the date of application, and including at least 12 months in the jurisdiction that issued the license described in paragraph (4).
(6) A passing score on the Pennsylvania Chiro-practic Law Examination.
(b) The applicant shall complete an application obtained from the Board detailing the applicant's education, examinations, licensure and experience, and certifying that the applicant has met the requirements for licensure under the act and this chapter, and return the application and appropriate documentation to the Board with the required fee [at least 30 days prior to the next Board meeting].
(c) [In addition to satisfying the educational and professional requirements listed in subsection (a), the licensee shall execute an affidavit certifying that the applicant is currently engaged in active practice and has been so continually for at least 1 year immediately preceding the date of the application, in the state, territory or province of the license on the basis of which the applicant is seeking a license in this Commonwealth by reciprocity.] An applicant's verification that the applicant has engaged in the practice of chiropractic as required under subsection (a)(5) will satisfy the requirement that the applicant present evidence of experience.
* * * * * (e) The Board may [require that a personal interview be conducted with an applicant for licensure without restriction by reciprocity to ascertain the applicant's ability to practice with reasonable skill and safety to patients and the applicant's knowledge of the requirements of the act and this chapter and other pertinent health laws of the Commonwealth] deny an application for licensure by reciprocity as provided in section 506(a) of the act (63 P. S. § 625.506(a)).
[Pa.B. Doc. No. 11-1597. Filed for public inspection September 16, 2011, 9:00 a.m.]
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