RULES AND REGULATIONS
BUREAU OF PROFESSIONAL AND OCCUPATIONAL AFFAIRS
[ 49 PA. CODE CH. 43b ]
Schedule of Civil Penalties—Social Workers, Marriage and Family Therapists and Professional Counselors
[43 Pa.B. 7279]
[Saturday, December 14, 2013]The Commissioner of Professional and Occupational Affairs (Commissioner) adds § 43b.24 (relating to schedule of civil penalties—social workers, marriage and family therapists and professional counselors) to read as set forth in Annex A.
Effective Date
The civil penalty schedule will be effective upon publication in the Pennsylvania Bulletin and will apply to violations that occur on or after the effective date.
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 and commissions in the Bureau of Professional and Occupational Affairs (Bureau), to promulgate regulations setting forth a schedule of civil penalties, guidelines for their imposition and procedures for appeal for: (1) operating without a current and valid license, registration, certificate or permit; and (2) violating an act or regulation of a licensing board or commission regarding the conduct or operation of a business or facility licensed by a board or commission.
Background and Purpose
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 boards and commissions. 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 Act 48 citations 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. Act 48 citations have become an important part of the Bureau's enforcement efforts.
Upon consultation with a representative of the Commissioner, the State Board of Social Workers, Marriage and Family Therapists and Professional Counselors (Board) determined that it should utilize the Act 48 citation process to decrease costs to its licensees and more efficiently conduct its duties. To that end, the final-form rulemaking adds § 43b.24 to establish a schedule of civil penalties for three general categories of matters that routinely arise before the Board: cases involving unlicensed individuals holding out as licensed; lapsed license cases; and cases involving violations of the continuing education requirements.
Summary of Comments and the Commissioner's Response
The Commissioner published the proposed rulemaking at 42 Pa.B. 5742 (September 8, 2012) with a 30-day public comment period. On October 8, 2012, the Commissioner received a comment from the Pennsylvania Association for Marriage and Family Therapists (PAMFT). Generally, PAMFT agreed with the schedule of civil penalties and asked that the Commissioner consider additional language restricting the use of the term ''family therapist'' to individuals with appropriate training and education, similar to the protection accorded to the term ''social worker'' in section 20(a.1) of the Social Workers, Marriage and Family Therapists and Professional Counselors Act (act) (63 P. S. § 1920(a.1)). Unfortunately, neither the Commissioner nor the Board has the statutory authority to restrict the use of the term ''family therapist'' or to impose civil penalties for the use of that term. It would take an act of the General Assembly to provide title protection to the use of the term ''family therapist.'' For this reason, a change has not been made to the final-form rulemaking based on this comment.
On October 22, 2012, the House Professional Licensure Committee (HPLC) submitted comments to the Commissioner on the proposed rulemaking. The HPLC suggested deleting a duplicate word. The Legislative Reference Bureau deleted the duplicate word when the proposed rulemaking was published and the Commissioner has likewise removed the word from the final-form rulemaking. In addition, the HPLC suggested describing the violation under section 20(a.1) of the act as holding oneself out as a social worker without meeting ''the criteria set forth in'' the definition of ''social worker'' in section 3 of the act (63 P. S. § 1903). The Commissioner found this suggestion reasonable and made the amendment to the final-form rulemaking.
On November 8, 2013, the Independent Regulatory Review Commission (IRRC) sent a letter to the Commissioner indicating that it did not have objections, comments or recommendations to offer on the proposed rulemaking.
Fiscal Impact and Paperwork Requirements
The final-form rulemaking will not have an adverse fiscal impact on the Commonwealth or its political subdivisions and 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
The Commissioner continuously monitors the effectiveness of Bureau regulations on a fiscal year and biennial basis. 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 August 28, 2012, the Commissioner submitted a copy of the proposed rulemaking, published at 42 Pa.B. 5742, to IRRC and the Chairpersons of the HPLC and the Senate Consumer Protection and Professional Licensure Committee (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 Commissioner 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 November 6, 2013, the final-form rulemaking was deemed approved by the HPLC and the SCP/PLC. Under section 5.1(e) of the Regulatory Review Act, IRRC met on November 7, 2013, and approved the final-form rulemaking.
Contact Person
Further information may be obtained by contacting Beth Michlovitz, Counsel, State Board of Social Workers, Marriage and Family Therapists and Professional Counselors, P. O. Box 2649, Harrisburg, PA 17105-2649.
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) (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 purpose of the proposed rulemaking published at 42 Pa.B. 5742.
(4) This final-form rulemaking is necessary and appropriate for administering and enforcing the authorizing act identified this preamble.
Order
The Commissioner, acting under the authority of Act 48, orders that:
(a) The regulations of the Commissioner, 49 Pa. Code Chapter 43b, are amended by adding § 43b.24 to read as set forth in Annex A.
(b) The Commissioner shall submit this order and Annex A to the Office of General Counsel and the Office of Attorney General as required by law.
(c) The Commissioner shall certify this order and Annex A and deposit them with the Legislative Reference Bureau as required by law.
(d) This order shall take effect upon publication in the Pennsylvania Bulletin.
KATIE TRUE,
Commissioner(Editor's Note: See 43 Pa.B. 7282 (December 14, 2013) for a final-form rulemaking by the Board 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 43 Pa.B. 6988 (November 23, 2013).)
Fiscal Note: Fiscal Note 16A-6917 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 43b. COMMISSIONER OF PROFESSIONAL AND OCCUPATIONAL AFFAIRS
SCHEDULE OF CIVIL PENALTIES, GUIDELINES FOR IMPOSITION OF CIVIL PENALTIES AND PROCEDURES FOR APPEAL § 43b.24. Schedule of civil penalties—social workers, marriage and family therapists and professional counselors.
STATE BOARD OF SOCIAL WORKERS, MARRIAGE AND FAMILY THERAPISTS AND
PROFESSIONAL COUNSELORS
Violation
under 63 P. S.Title/Description Penalties Sections 1904 and 1916 Holding oneself out as a licensed social worker, using the letters L.S.W. in connection with one's name or using words or symbols indicating or tending to indicate that one is a licensed social worker without first having obtained a license from the Board 1st offense—$500
2nd and subsequent offenses—formal actionSections 1904 and 1916.1 Holding oneself out as a licensed clinical social worker, using the letters L.C.S.W. in connection with one's name or using words or symbols indicating or tending to indicate that one is a licensed clinical social worker without first having obtained a license from the Board 1st offense—$500
2nd and subsequent offenses—formal actionSections 1904 and 1916.2 Holding oneself out as a licensed marriage and family therapist, using the letters L.M.F.T. in connection with one's name or using words or symbols indicating or tending to indicate that one is a licensed marriage and family therapist without first having obtained a license from the Board 1st offense—$500
2nd and subsequent offenses—formal actionSections 1904 and 1916.3 Holding oneself out as a licensed professional counselor, using the letters L.P.C. in connection with one's name or using words or symbols indicating or tending to indicate that one is a licensed professional counselor without first having obtained a license from the Board 1st offense—$500
2nd and subsequent offenses—formal actionSection 1920(a) Holding oneself out as a licensed social worker, licensed clinical social worker, licensed marriage and family therapist or licensed professional counselor on a lapsed or expired license 1st offense—0 to 12 months—$100 per month up to $1,000; over 12 months—formal action
2nd and subsequent offense—formal actionSection 1920(a.1) Holding oneself out as a social worker, using the title of ''social worker'' or using the abbreviation ''S.W.'' without meeting the criteria in the definition of ''social worker'' in 63 P. S. § 1903 1st offense—$500
2nd and subsequent offenses—formal action
Violation under 49 Pa. Code Title/Description Penalties Section 47.32(a) Failure of a licensed social worker to complete 30 clock hours of continuing education in acceptable courses and programs in social work offered by approved providers during the preceding biennium as a condition of renewal, including at least 3 clock hours in ethical issues 1st offense—less than 3 hours deficient—warning; 3 to 10 hours deficient—$100 per hour; over 10 hours deficient—formal action
2nd and subsequent offenses—formal actionSection 47.32(b) Failure of a licensed clinical social worker to complete 30 clock hours of continuing education in acceptable courses and programs in social work offered by approved providers during the preceding biennium as a condition of renewal, including at least 3 clock hours in ethical issues 1st offense—less than 3 hours deficient—warning; 3 to 10 hours deficient—$100 per hour; over 10 hours deficient—formal action
2nd and subsequent offenses—formal actionSection 48.32 Failure of a licensed marriage and family therapist to complete 30 clock hours of continuing education in acceptable courses and programs offered by approved providers during the preceding biennium as a condition of renewal, including at least 3 clock hours in ethical issues 1st offense—less than 3 hours deficient—warning; 3 to 10 hours deficient—$100 per hour; over 10 hours deficient—formal action
2nd and subsequent offenses—formal actionSection 49.32 Failure of a licensed professional counselor to complete 30 clock hours of continuing education in acceptable courses and programs offered by approved providers during the preceding biennium as a condition of renewal, including at least 3 clock hours in ethical issues 1st offense—less than 3 hours deficient—warning; 3 to 10 hours deficient—$100 per hour; over 10 hours deficient—formal action
2nd and subsequent offenses—formal action
[Pa.B. Doc. No. 13-2315. Filed for public inspection December 13, 2013, 9:00 a.m.]
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