PROPOSED RULEMAKING

BUREAU OF PROFESSIONAL AND OCCUPATIONAL AFFAIRS

[ 49 PA. CODE CH. 43b ]

Schedule of Civil Penalties—Physical Therapists and Physical Therapist Assistants

[44 Pa.B. 7173]
[Saturday, November 15, 2014]

 The Commissioner of Professional and Occupational Affairs (Commissioner) proposes to add § 43b.25 (relating to schedule of civil penalties—physical therapists and physical therapist assistants) to read as set forth in Annex A.

Effective Date

 The proposed rulemaking will be effective upon final-form publication in the Pennsylvania Bulletin.

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 in the Bureau of Professional and Occupational Affairs (Bureau), to promulgate a schedule of civil penalties for violations of the acts or regulations of these licensing boards. Section 12(c) of the Physical Therapy Practice Act (act) (63 P. S. § 1312(c)) authorizes the State Board of Physical Therapy (Board) to levy a civil penalty of up to $1,000 on a licensee or certificate holder who violates a provision of the act, and section 5(b)(4) of Act 48 authorizes a board within the Bureau to levy a civil penalty of not more than $10,000 per violation on a licensee or certificate holder who violates a provision of the applicable licensing act or board regulation.

Background and Need for the Proposed Rulemaking

 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 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 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 sanctions imposed by the licensing boards being accomplished through the Act 48 citation process. The Board has not previously had an Act 48 schedule of civil penalties.

 As is being done for other licensing boards with continuing education requirements, the Commissioner is proposing a civil penalty schedule for violation of the continuing education requirements for licensees of the Board, because the Commissioner and the Board believe the Act 48 citation process will be a much more efficient method of handling these violations, while still ensuring licensees due process. Payment of the civil penalty will not relieve a licensee of the obligation to complete the required amount of mandatory continuing education. Be-cause the primary objective of the disciplinary process is compliance, under the separate rulemaking being proposed by the Board, a licensee who fails to complete the required amount of mandatory continuing education during the biennial renewal period will also be required to complete the required continuing education during the next 6 months. Failure to complete the required continuing education by that deadline will subject the licensee to formal disciplinary action. The proposed rulemaking is intended to apply to licensees and certificate holders who mistakenly verified that they satisfied the continuing education requirement and timely renewed, but who later were determined not to have satisfied the requirements. In support of the additional disciplinary objective of deterrence, the Commonwealth's prosecuting attorneys have discretion to file formal action under section 11(a)(2) of the act (63 P. S. § 1311(a)(2)) against those licensees and certificate holders who attempt to or obtain licensure or certification by fraud or misrepresentation. As provided in the Board's regulations in §§ 40.67(b)(3) and 40.192(b)(3) (relating to continuing education for licensed physical therapist; and continuing education for certified physical therapist assistant), the Board will audit physical therapists and physical therapist assistants to verify compliance with the continuing education requirements, and licensees and certificate holders are required to respond to audit notices timely. The Board believes that prompt issuance of a citation and subsequent audit notices will encourage compliance with the continuing education requirements.

 The Board's regulation in § 40.20(f) (relating to inactive status of physical therapist license) prohibits a licensed physical therapist whose license has lapsed from practicing physical therapy in this Commonwealth and § 40.191(j) (relating to renewal of certification) prohibits a certified physical therapist assistant whose certificate has lapsed from providing physical therapy services in this Commonwealth. As is being done for other licensing boards, the Commissioner is proposing a civil penalty schedule for practice on a lapsed or expired license or certificate, because the Commissioner and Board believe the Act 48 citation process will be a much more efficient method of handling these violations, while still ensuring licensees due process. Because failure to renew a license might be an attempt to avoid the continuing education or, for licensed physical therapists, professional liability 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. A licensee who practiced on a lapsed license without having complied with the continuing education or malpractice insurance requirements will instead be subject to formal disciplinary action where the Board has the authority to suspend or revoke a license.

Description of the Proposed Rulemaking

 The Commissioner, in consultation with the Board, proposes for practicing on a lapsed or expired license or certificate (while in compliance with continuing education and applicable professional liability insurance requirements) a civil penalty of $50 per month, up to a maximum of $1,000, for practicing less than one renewal cycle. Violations of practicing for more than one renewal cycle while expired would not be subject to an Act 48 citation, but rather would proceed through the formal disciplinary process.

 The Commissioner, in consultation with the Board, also proposes for a first offense violation of failing to complete the required amount of mandatory continuing education during the biennial renewal period a civil penalty of $25 for each credit hour that the licensee or certificate holder is deficient, up to a maximum of $1,000. For a second offense violation with a deficiency of 20 hours or less the civil penalty would be $50 per hour of deficiency, and for a third offense violation with a deficiency of 10 hours or less the civil penalty would be $100 per hour of deficiency. Offenses beyond these amounts of deficiency and subsequent offenses would not be subject to an Act 48 citation, but rather would proceed through the formal disciplinary process. Additionally, the Commissioner, in consultation with the Board, proposes for a first offense of failing to respond timely to an audit notice a civil penalty of $100, increasing to $250 for a second offense and $500 for a third offense, with subsequent offenses resulting in formal disciplinary action. However, a citation could only be issued if the underlying audit notice notified the licensee that failure to respond would result in issuance of a citation.

Fiscal Impact and Paperwork Requirements

 The proposed rulemaking should not have adverse fiscal impact on the Commonwealth, its political subdivisions or the private sector. The proposed rulemaking will not impose additional paperwork requirements upon the Commonwealth, its political subdivisions or the private sector. Instead, the proposed rulemaking will reduce the paperwork requirements of 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 and the Board continuously monitor the effectiveness of regulations. As a result, sunset date has not been assigned.

Regulatory Review

 Under section 5(a) of the Regulatory Review Act (71 P. S. § 745.5(a)), on October 31, 2014, the Commissioner 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 and the Senate Consumer Protection and Professional Licensure Committee. 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 Commissioner, 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, RA-STRegulatoryCounsel@pa.gov within 30 days following publication of this proposed rulemaking in the Pennsylvania Bulletin. Reference No. 16A-6516 (Schedule of civil penalties—physical therapists and physical therapist assistants) when submitting comments.

TRAVIS N. GERY, Esq., 
Commissioner

 (Editor's Note: See 44 Pa.B. 7178 (November 15, 2014) for a proposed rulemaking rulemaking by the State Board of Physical Therapy relating to this proposed rulemaking.)

 Fiscal Note: 16A-6516. 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 43b. COMMISSIONER OF PROFESSIONAL AND OCCUPATIONAL AFFAIRS

SCHEDULE OF CIVIL PENALTIES, GUIDELINES FOR IMPOSITION OF CIVIL PENALTIES AND PROCEDURES FOR APPEAL

§ 43b.25. Schedule of civil penalties—physical therapists and physical therapist assistants.

STATE BOARD OF PHYSICAL THERAPY

Violation under 49 Pa. Code	Title/Description	Penalties
Section 40.20(b)	Practicing physical therapy after failing to renew but before reactivation of license (in compliance with continuing education requirements)	One biennial renewal cycle or less—$50 per  month lapsed, not to exceed $1,000 More than one biennial renewal cycle—  formal action
Section 40.67(a)	Failure of licensed physical therapist to complete the required amount of continuing education	1st offense—$25 per hour of deficiency, not to  exceed $1,000 2nd offense—deficient 20 hours or less—  $50 per hour of deficiency not to exceed  $1,000 2nd offense—deficient more than 20  hours—formal action 3rd offense—deficient 10 hours or less—  $100 per hour of deficiency not to exceed  $1,000 3rd offense—deficient more than 10  hours—formal action Subsequent offenses—formal action
Section 40.67(b)(3)	Failure of licensed physical therapist to respond to continuing education audit request within 30 days, or other time period in audit request that notifies the licensee that failure to respond is subject to discipline	1st offense—$100 2nd offense—$250 3rd offense—$ 500 Subsequent offenses—formal action
Section 40.191(j)	Providing services as a physical therapist assistant after failing to renew but before reactivation of certification (in compliance with continuing education requirements)	One biennial renewal cycle or less—$50 per  month lapsed, not to exceed $1,000 More than one biennial renewal cycle—formal  action
Section 40.192(a)	Failure of certified physical therapist assistant to complete the required amount of continuing education	1st offense—$25 per hour of deficiency, not to  exceed $1,000 2nd offense—deficient 20 hours or less—  $50 per hour of deficiency, not to exceed  $1,000 2nd offense—deficient more than 20  hours—formal action 3rd offense—deficient 10 hours or less—  $100 per hour of deficiency, not to exceed  $1,000 3rd offense—deficient more than 10  hours—formal action Subsequent offenses—formal action
Section 40.192(b)(3)	Failure of certified physical therapist assistant to respond to continuing education audit request within 30 days, or other time period in audit request that notifies the physical therapist assistant that failure to respond is subject to discipline	1st offense—$100 2nd offense—$250 3rd offense—$ 500 Subsequent offenses—formal action

[Pa.B. Doc. No. 14-2355. Filed for public inspection November 14, 2014, 9:00 a.m.]

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