PROPOSED RULEMAKING

BUREAU OF PROFESSIONAL AND OCCUPATIONAL AFFAIRS

[ 49 PA. CODE CH. 43b ]

Schedule of Civil Penalties—Podiatrists

[45 Pa.B. 2704]
[Saturday, June 6, 2015]

 The Acting Commissioner of Professional and Occupational Affairs (Commissioner) proposes to add § 43b.27 (relating to schedule of civil penalties—podiatrists) 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

 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 the licensing boards.

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. An individual who receives an Act 48 citation retains his due process right to a hearing prior to the imposition of judgment. 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. Section 5(b)(4) of Act 48 authorizes the State Board of Podiatry (Board), as a licensing board within the Bureau, to levy a civil penalty of not more than $10,000 on any licensee or unlicensed person who violates a provision of the Podiatry Practice Act (act) (63 P. S. §§ 42.1—42.21c) or regulations of the Board. However, section 5(a) of Act 48 limits the civil penalty that may be levied by citation to no more than $1,000 per violation.

 This is the first time that the Board will participate in the Act 48 citation program. The Commissioner and the Board believe it is necessary to implement the civil penalties in this proposed rulemaking to streamline the disciplinary process.

Description of the Proposed Rulemaking

 The Commissioner, in consultation with the Board, proposes to add § 43b.27 to establish a schedule of civil penalties for practicing on a lapsed license and for failure to complete 50 hours of approved continuing education as required by the act and regulations.

 This proposed rulemaking would also progressively increase the civil penalties for continuing violations for the listed offenses based on the length of the violation. For example, the penalty for practicing on a lapsed license would increase depending on the length of time that the license has lapsed. For a first offense of practicing on a lapsed license for less than 2 months, the civil penalty would be $250. Practicing on a lapsed license for 2 months to 5 months would result in a civil penalty of $500, while practicing on a lapsed license over 5 months to 12 months would be a $1,000 civil penalty. For second offenses by a licensee, practicing on a lapsed license for less than 6 months would result in a civil penalty of $500, and practicing on a lapsed license from 6 months to 12 months would be a penalty of $1,000. If a license would lapse for more than 12 months, the result would be formal administrative action.

 Likewise, the penalty for failure to complete 50 hours of approved continuing education would increase depending on the number of hours a licensee is deficient in continuing education. For a first offense of failure to complete continuing education, the Board would use a formula of $50 per hour of deficiency, not to exceed $1,000 (the maximum for an Act 48 citation). For a first offense of failure to complete more than 20 hours of continuing education, the result would be formal administrative action. For a second offense, the penalty increases to $100 per hour of deficiency, not to exceed $1,000, and a deficiency more than 10 hours would result in formal administrative action.

Fiscal Impact and Paperwork Requirements

 The proposed rulemaking would not have adverse fiscal impact on the Commonwealth or its political subdivisions, and would 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. The only fiscal impact of this proposed rulemaking would be borne by those persons who violate the act or regulations of the Board and are subject to the civil penalties proposed by the new schedule.

Sunset Date

 The Bureau and the Board continuously monitor the effectiveness of the regulations. As a result, 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 May 20, 2015, 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 Louis Lawrence Boyle, Assistant 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-4413 (schedule of civil penalties—podiatrists), when submitting comments.

IAN J. HARLOW, 
Acting Commissioner

 Fiscal Note: 16A-4413. 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.27. Schedule of civil penalties—podiatrists.

STATE BOARD OF PODIATRY

Violation under 63 P. S.	Violation under 49 Pa. Code	Title/Description	Civil Penalty
Section 42.12	Section 29.14(a)	Practicing or offering to practice podiatry by a person whose license is expired	1st offense—less than 2 months— $250; 2—5 months—$500; over 5—12 months—$1,000; over 12 months— formal action   2nd offense—less than 6 months— $500; 6—12 months—$1,000; over 12 months—formal action   Subsequent offenses—formal action
Section 42.9a	Section 29.61(a)	Failure to complete required hours of continuing education during the 2 years preceding renewal or reactivation	1st offense—$50 per hour of deficiency, not to exceed $1,000; over 20 hours— formal action   2nd offense—$100 per hour of deficiency, not to exceed $1,000; over 10 hours— formal action   Subsequent offenses—formal action

[Pa.B. Doc. No. 15-1050. Filed for public inspection June 5, 2015, 9:00 a.m.]

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