RULES AND REGULATIONS
STATE BOARD OF SOCIAL WORKERS, MARRIAGE AND FAMILY THERAPISTS AND PROFESSIONAL COUNSELORS
[ 49 PA. CODE CHS. 47—49 ]
Continuing Education Audit and Enforcement
[43 Pa.B. 7282]
[Saturday, December 14, 2013]The State Board of Social Workers, Marriage and Family Therapists and Professional Counselors (Board) amends §§ 47.37, 48.38 and 49.38 (relating to reporting by licensee of hours spent in continuing education; continuing education audit and enforcement) to read as set forth in Annex A.
Statutory Authority
Section 18(a) of the Social Workers, Marriage and Family Therapists and Professional Counselors Act (act) (63 P. S. § 1918(a)) authorizes the Board to promulgate regulations regarding continuing education.
Background and Purpose
The Board has determined that to be more efficient and cost-effective in handling certain classes of disciplinary matters, including those regarding some continuing education violations, the Board should make use of the citation process provided by section 5(a) of the act of July 2, 1993 (P. L. 345, No. 48) (Act 48) (63 P. S. § 2205(a)). A companion final-form rulemaking promulgated by the Commissioner of Professional and Occupational Affairs sets forth a schedule of civil penalties to allow agents of the Bureau of Professional and Occupational Affairs (Bureau) to issue citations imposing monetary civil penalties for continuing education violations involving deficiencies of 10 hours or less. Violations of more than 10 hours will still be handled through formal disciplinary proceedings. Historically, when the Board determined a continuing education violation had occurred, the Board would issue an order imposing discipline and directing that the deficiency be made up within 6 months. The Board has now determined that it is necessary to codify this practice to be able to make use of the more streamlined citation process and still ensure that continuing education deficiencies are remedied in a timely manner.
Summary of Comments and the Board's Response
The Board published a proposed rulemaking at 42 Pa.B. 5744 (September 8, 2012) with a 30-day public comment period. The Board did not receive comments from the public. On October 23, 2012, the Board received comments from the House Professional Licensure Committee (HPLC). On November 8, 2012, the Board received comments from the Independent Regulatory Review Commission (IRRC). The HPLC and IRRC both commented on the continuing education audit process. The HPLC asked for an explanation regarding at what point in the biennial period the continuing education audits are expected to be conducted. IRRC asked the Board to provide a more detailed explanation for how the Board conducts these random audits, including an average time frame necessary to complete an audit, and the impact an audit will have on a licensee's ability to practice.
Generally, continuing education audits are expected to begin approximately 90 days after the end of the biennial period. The licensure database contains a program that generates a list of licensees selected randomly for audit. An audit letter is generated and sent by first class mail to each licensee selected for audit to the licensee's last address on file with the Board. The letter directs the licensee to provide documentation evidencing completion of the required continuing education for the prior biennial period within 30 days. If a licensee fails to respond to the first notice, a second notice is sent by certified mail, with return receipt requested, again requesting the required documentation. The documentation received is reviewed by Bureau staff to determine if it appears to comply with the continuing education regulations. Bureau staff may correspond with a licensee to resolve any issues. This process can take another 60 to 90 days. Ultimately, if a suspected deficiency is identified and remains unresolved, the audit file is referred to the Bureau's Professional Compliance Office to be reviewed for possible disciplinary action. The audit process does not impact the licensee's ability to practice.
Possible continuing education deficiencies are then reviewed by the paralegals and attorneys in the Professional Compliance Office/Prosecution Division to determine if there has been a violation of the continuing education regulations. If a violation is identified, one of three possible actions will be taken: 1) a warning letter may be issued; 2) a citation may be issued imposing a monetary civil penalty; or 3) formal disciplinary action may be started by the filing of an order to show cause. IRRC asked under what circumstances a warning letter would be sent. Under the schedule of civil penalties promulgated by the Commissioner of Professional and Occupational Affairs, a warning letter may be appropriate if the deficiency amounts to 1 or 2 credit hours. This often occurs when a licensee documents 30 hours of continuing education, however a particular course may not have been given by an approved provider, or a licensee may exceed the cap on the number of hours that are permitted to be taken in home study courses. It can also occur when a licensee submits documentation of a course completed outside of the applicable biennial renewal period. The warning letter will direct the licensee to make up the deficiency within 6 months as required under § 47.37(d), § 48.38(d) or § 49.38(d), as applicable.
A citation may be issued under the civil penalty schedule for deficiencies of 3 to 10 credit hours. Under the civil penalty schedule in § 43b.24 (relating to schedule of civil penalties—social workers, marriage and family therapists and professional counselors), a citation of $100 per credit hour would be issued to the licensee along with a notice to make up the deficiency, as required. Upon receipt of the citation, the licensee could simply pay the civil penalty and make up the deficiency within 6 months or dispute the violation and request a hearing. Hearings on citations are conducted on the first Tuesday of each month before a hearing examiner. If a licensee is aggrieved by a decision of the hearing examiner, the licensee may appeal it to the Board. The Board members will then review the record made before the hearing examiner and determine whether to uphold or dismiss the citation, and a final order would be issued.
Finally, if the identified deficiency is between 11 and 30 credit hours, formal disciplinary action could be initiated by the filing of an order to show cause. Under the General Rules of Administrative Practice and Procedure (GRAPP), the licensee has 30 days to file an answer to the order to show cause and may request a hearing. The Board may hear the matter or delegate it to be heard by a hearing examiner. A formal hearing is conducted and ultimately a final adjudication and order is issued either finding a violation and imposing discipline, or dismissing the matter. If discipline is imposed, it will include an order to make up the deficient continuing education hours within 6 months. It should be noted, however, that the vast majority of formal disciplinary proceedings for continuing education violations are resolved by consent agreement and order.
The HPLC asked whether 1 year or more of the licensure period passes before an audit is completed and a citation or other sanctions are imposed. It is possible that an audit and the resulting action by the legal office could take 1 year or more to complete. The audit is not started until at least 90 days after the close of the biennial renewal period. The audit itself can take up to 6 months to complete. Review and action by the legal office staff adds additional time to the overall process. Formal disciplinary action takes much longer than the citation process which, in turn, takes longer than the warning letter process.
IRRC recommended, to aid clarity, that the Board add a cross reference to the schedule of civil penalties promulgated by the Commissioner to §§ 47.37(c), 48.38(c) and 49.38(c). The Board agrees that a cross-reference to § 43b.24 would aid clarity and has made that amendment to the final-form rulemaking. IRRC also recommended that §§ 47.37(c), 48.38(c) and 49.38(c) specifically reference the subsections of section 11 of the act (63 P. S. § 1911) that apply to authorize formal disciplinary action. Section 11(a) of the act authorizes the Board to discipline a licensee for a variety of reasons including those that may be applicable to a continuing education deficiency. The discretion as to which grounds to charge in the order to show cause lies exclusively with the prosecuting attorney. The Board cannot be involved in the decision to prosecute or otherwise direct the prosecution of continuing education violations. Section 11(b) of the act sets forth the panoply of sanctions available to the Board and section 11(c) of the act provides the requirement that the actions of the Board be taken subject to the right of notice, hearing, adjudication and appeal in accordance with GRAPP. Section 11(d) and (e) of the act, regarding temporary suspension and automatic suspension, does not apply to continuing education violations. Therefore, to aid clarity, the Board amended the final-form rulemaking to refer to section 11(a)—(c) only.
The HPLC asked how the 6-month deficiency correction period will be monitored. Once the warning letter, citation or final order imposing formal discipline is issued advising the licensee of the need to make up the deficiency, Board staff will receive the documentation required under subsection (d) and it will be reviewed. If a licensee fails to submit documentation within 6 months as directed, the matter will be referred again to the Professional Compliance Office for consideration as to whether additional disciplinary action should be initiated. With reference to subsection (e) which pertains to ''additional disciplinary action under section 11 of the act,'' IRRC asked the Board to include specific cross references to the relevant provisions in the act. The Board's reference to ''additional disciplinary action'' was meant to refer to the possibility of a second disciplinary action being brought for violating a regulation promulgated by the Board or for violating an order of the Board previously entered in a disciplinary proceeding. Again, the specific provisions of section 11 that would apply to a disciplinary proceeding are in section 11(a)—(c) of the act. Therefore, the Board amended the final-form rulemaking to refer only to these subsections.
Description of Amendments
Based on the comments received, §§ 47.37(c) and (e), 48.38(c) and (e) and 49.38(c) and (e) have been amended to clarify the relevant provisions of section 11 of the act that authorize disciplinary action for continuing education violations and to provide a cross reference to the applicable civil penalty schedule for social workers, marriage and family therapists and professional counselors.
Fiscal Impact and Paperwork Requirements
The final-form rulemaking should not result in additional legal, accounting or reporting requirements for the Commonwealth or the regulated community.
Sunset Date
The Board continuously monitors the effectiveness of its 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 Board submitted a copy of the proposed rulemaking, published at 42 Pa.B. 5744, 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 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 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 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 purpose of the proposed rulemaking published at 42 Pa.B. 5744.
(4) This final-form rulemaking is necessary and appropriate for administering and enforcing the authorizing act identified this preamble.
Order
The Board, acting under the authority of its authorizing statute, orders that:
(a) The regulations of the Board, 49 Pa. Code Chapters 47—49, are amended by amending §§ 47.37, 48.38 and 49.38 to read as set forth in Annex A.
(b) The Board 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 Board 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 on publication in the Pennsylvania Bulletin.
LAURA L. HINDS, LSW,
Chairperson(Editor's Note: See 43 Pa.B. 7279 (December 14, 2013) for a final-form rulemaking by the Bureau 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-6918 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 47. STATE BOARD OF SOCIAL WORKERS, MARRIAGE AND FAMILY THERAPISTS AND PROFESSIONAL COUNSELORS
CONTINUING EDUCATION § 47.37. Reporting by licensee of hours spent in continuing education; continuing education audit and enforcement.
(a) Applicants for license renewal shall provide a signed statement certifying that the continuing education requirements have been met. The certification statement will be included on the application form for renewal of licensure.
(b) The Board will randomly audit licensees to ensure compliance with the continuing education requirements. A licensee selected for audit shall provide information to document the licensee's completion of required continuing education. The information must include the following:
(1) The date attended.
(2) The clock hours claimed.
(3) The title of course or program and description of content.
(4) The school, hospital, medical center or organization which sponsored the course or program.
(5) The instructor.
(6) The location of course or program.
(7) The Board approval number assigned to the course or program unless the provider is preapproved under § 47.36(a) (relating to preapproved providers of continuing education courses and programs for social workers and clinical social workers).
(c) A licensee who, as a result of an audit, is determined to be deficient in continuing education hours is subject to formal disciplinary action under section 11(a)—(c) of the act (63 P. S. § 1911(a)—(c)) or the issuance of a citation under section 5(a) of the act of July 2, 1993 (P. L. 345, No. 48) (63 P. S. § 2205(a)) as provided in § 43b.24 (relating to schedule of civil penalties—social workers, marriage and family therapists and professional counselors).
(d) Notwithstanding other action taken as set forth in subsection (c), a licensee who is determined to be deficient in continuing education hours is required to make up deficient hours of continuing education and submit documentation containing the information in subsection (b) to the Board within 6 months from the issuance of a warning letter, the issuance of a citation or the imposition of discipline. Hours of continuing education submitted to the Board to make up for a deficiency may not be used by the licensee to satisfy the continuing education requirement for the current biennium.
(e) Failure to make up the deficiencies in subsection (d) will subject the licensee to additional disciplinary action under section 11(a)—(c) of the act.
CHAPTER 48. STATE BOARD OF SOCIAL WORKERS, MARRIAGE AND FAMILY THERAPISTS AND PROFESSIONAL COUNSELORS—LICENSURE OF MARRIAGE AND FAMILY THERAPISTS
CONTINUING EDUCATION § 48.38. Reporting by licensee of hours spent in continuing education; continuing education audit and enforcement.
(a) Applicants for license renewal shall provide a signed statement certifying that the continuing education requirements have been met. The certification statement will be included on the application form for renewal of licensure.
(b) The Board will randomly audit licensees to ensure compliance with the continuing education requirements. A licensee selected for audit shall provide information to document the licensee's completion of required continuing education. The information must include the following:
(1) The date attended.
(2) The clock hours claimed.
(3) The title of course or program and description of content.
(4) The school, hospital, medical center or organization which sponsored the course or program.
(5) The instructor.
(6) The location of course or program.
(7) The Board approval number assigned to the course or program unless the provider is preapproved under § 48.36(a) (relating to preapproved providers of continuing education courses and programs for marriage and family therapists).
(c) A licensee who, as a result of an audit, is determined to be deficient in continuing education hours is subject to formal disciplinary action under section 11(a)—(c) of the act (63 P. S. § 1911(a)—(c)) or the issuance of a citation under section 5(a) of the act of July 2, 1993 (P. L. 345, No. 48) (63 P. S. § 2205(a)) as provided in § 43b.24 (relating to schedule of civil penalties—social workers, marriage and family therapists and professional counselors).
(d) Notwithstanding other action taken as set forth in subsection (c), a licensee who is determined to be deficient in continuing education hours is required to make up deficient hours of continuing education and submit documentation containing the information in subsection (b) to the Board within 6 months from the issuance of a warning letter, the issuance of a citation or the imposition of discipline. Hours of continuing education submitted to the Board to make up for a deficiency may not be used by the licensee to satisfy the continuing education requirement for the current biennium.
(e) Failure to make up the deficiencies in subsection (d) will subject the licensee to further disciplinary action under section 11(a)—(c) of the act.
CHAPTER 49. STATE BOARD OF SOCIAL WORKERS, MARRIAGE AND FAMILY THERAPISTS AND PROFESSIONAL COUNSELORS—LICENSURE OF PROFESSIONAL COUNSELORS
CONTINUING EDUCATION § 49.38. Reporting by licensee of hours spent in continuing education; continuing education audit and enforcement.
(a) Applicants for license renewal shall provide a signed statement certifying that the continuing education requirements have been met. The certification statement will be included on the application form for renewal of licensure.
(b) The Board will randomly audit licensees to ensure compliance with the continuing education requirements. A licensee selected for audit shall provide information to document the licensee's completion of required continuing education. The information must include the following:
(1) The date attended.
(2) The clock hours claimed.
(3) The title of course or program and description of content.
(4) The school, hospital, medical center or organization which sponsored the course or program.
(5) The instructor.
(6) The location of course or program.
(7) The Board approval number assigned to the course or program unless the provider is preapproved under § 49.36(a) (relating to preapproved providers of continuing education courses and programs for professional counselors).
(c) A licensee who, as a result of an audit, is determined to be deficient in continuing education hours is subject to formal disciplinary action under section 11(a)—(c) of the act (63 P. S. § 1911(a)—(c)) or the issuance of a citation under section 5(a) of the act of July 2, 1993 (P. L. 345, No. 48) (63 P. S. § 2205(a)) as provided in § 43b.24 (relating to schedule of civil penalties—social workers, marriage and family therapists and professional counselors).
(d) Notwithstanding other action taken as set forth in subsection (c), a licensee who is determined to be deficient in continuing education hours is required to make up deficient hours of continuing education and submit documentation containing the information in subsection (b) to the Board within 6 months from the issuance of a warning letter, the issuance of a citation or the imposition of discipline. Hours of continuing education submitted to the Board to make up for a deficiency may not be used by the licensee to satisfy the continuing education requirement for the current biennium.
(e) Failure to make up the deficiencies in subsection (d) will subject the licensee to further disciplinary action under section 11(a)—(c) of the act.
[Pa.B. Doc. No. 13-2316. Filed for public inspection December 13, 2013, 9:00 a.m.]
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