RULES AND REGULATIONS
STATE BOARD OF PHYSICAL THERAPY
[ 49 PA. CODE CH. 40 ]
Continuing Education Enforcement
[46 Pa.B. 6639]
[Saturday, October 22, 2016]The State Board of Physical Therapy (Board) amends §§ 40.67 and 40.192 (relating to continuing education for licensed physical therapist; and continuing education for certified physical therapist assistant) to read as set forth in Annex A.
Effective Date
This final-form rulemaking will become effective upon publication in the Pennsylvania Bulletin.
Statutory Authority
This final-form rulemaking is authorized under section 3(a) of the Physical Therapy Practice Act (act) (63 P.S. § 1303(a)), which provides the Board's general authority to promulgate regulations not inconsistent with law as it may deem necessary for the performance of its duties and the proper administration of the act.
Description and Need for this Final-Form Rulemaking
Section 7.2 of the act (63 P.S. § 1307.2) requires each licensed physical therapist to complete at least 30 hours of continuing physical therapy education during each biennial renewal period. Section 9.1(j) of the act (63 P.S. § 1309.1(j)) requires each certified physical therapist assistant to complete at least 30 hours of continuing physical therapy education during each biennial renewal period. The Board has incorporated these requirements into §§ 40.67(a) and 40.192(a), respectively. Under §§ 40.19(c)(5) and 40.191(c)(5) (relating to renewal of physical therapist license; and renewal of certification), to renew a license or certificate, a licensed physical therapist or certified physical therapist assistant is required to verify that the licensee or certificate holder has completed the required amount of continuing education. Moreover, the Board will not renew the license of a physical therapist or the certificate of a physical therapist assistant if the individual cannot verify that the continuing education required during the immediately preceding biennium has been completed. Although these requirements are conditions for renewal, a licensee or certificate holder may mistakenly verify satisfaction of the continuing education requirement. Upon audit, however, it is discovered that the licensee or certificate holder has not completed the requirements.
Under section 11(a)(6) of the act (63 P.S. § 1311(a)(6)), the Board may suspend or revoke a license or certificate for unprofessional conduct. Under section 12(c) of the act (63 P.S. § 1312(c)), the Board may levy a civil penalty against a licensee or certificate holder who has violated the act. Under § 40.52(11) (relating to unprofessional conduct; physical therapists), unprofessional conduct includes violating a provision of the act or the Board's regulations that establish a standard of conduct. Disciplinary actions for failing to complete the continuing education requirement in a timely manner invariably result in the licensee being required to pay a civil penalty proportionate to the amount of deficiency and to make up the deficiency promptly. Accordingly, the Board determined that it should utilize the more streamlined citation procedures under section 5(a) of the act of July 2, 1993 (P.L. 345, No. 48) (Act 48) (63 P.S. § 2205(a)), which provides that the Commissioner of Professional and Occupational Affairs (Commissioner), after consultation with licensing boards in the Bureau of Professional and Occupational Affairs (Bureau), may promulgate a schedule of civil penalties for violations of the acts or regulations of these licensing boards and agents of the Board may issue citations for violations covered by the schedule of civil penalties. Therefore, the Commissioner separately proposed a rulemaking using the Act 48 citation system to levy the civil penalty. However, the regulatory scheme must assure that, in addition to paying the civil penalty, the licensee has made up the deficient continuing education. This final-form rulemaking sets forth the procedures to address curing the deficiency.
This final-form rulemaking adds § 40.67(f). A licensed physical therapist who is determined through the post-renewal continuing education audit to be deficient will be issued an Act 48 citation for failing to complete the required amount of continuing education and will be required to make up the deficiency and provide proof to the Board within 6 months of the issuance of the citation. If the licensee does not do so, the licensee will be subject to disciplinary action, including the suspension of the license under section 11(a)(6) of the act for committing unprofessional conduct. Because mandatory continuing education is generally considered to be a condition of renewal, § 40.67(f) exempts for this disciplinary proceeding a licensee who permitted the license to expire at the conclusion of a renewal period during which the licensee did not complete the required amount of continuing education and did not practice the profession until reactivating the license under § 40.20(c) (relating to inactive status of physical therapist license) upon a demonstration that the licensee subsequently completed the required deficient continuing education.
Section 40.192(f) is added to provide similar provisions for certified physical therapist assistants. A certified physical therapist assistant who does not make up the deficiency will be subject to disciplinary action under § 40.181(a)(6) (relating to refusal, suspension or revocation of certification) for committing unprofessional conduct, as authorized under section 9.1(f) of the act. A physical therapist assistant who permitted the certificate to expire and did not provide services until reactivating under § 40.191(g) upon a demonstration that the certificate holder subsequently completed the required deficient continuing education would be exempted from this disciplinary process.
While the Commonwealth's prosecuting attorneys may utilize this ''citation and make-up'' system as one tool in addressing a licensee or certificate holder who has not completed the required continuing education, they retain the discretion to also file formal action under section 11(a)(2) of the act, which provides that the Board may suspend or revoke a license or certificate of an individual who has attempted to or obtained a license or certificate by fraud or misrepresentation, if the licensee/certificate holder, for example, knows that the required continuing education has not been completed, but verifies on the renewal application that the licensee/certificate holder has completed the required amount of continuing education.
Summary of Comments and Responses to Proposed Rulemaking
The Board published notice of proposed rulemaking at 44 Pa.B. 7178 (November 15, 2014) with a 30-day public comment period. The Board received no comments from the public. The Board received comments from the House Professional Licensure Committee (HPLC) and the Independent Regulatory Review Commission (IRRC) as part of their review of the proposed rulemaking under the Regulatory Review Act (71 P.S. §§ 745.1—745.14). The Board did not receive comments from the Senate Consumer Protection and Professional Licensure Committee (SCP/PLC).
The HPLC commented to note a typographical error in the proposed rulemaking as delivered. The Legislative Reference Bureau corrected this typographical error prior to publication of the proposed rulemaking in the Pennsylvania Bulletin.
IRRC pointed to the requirement of section 7.2 of the act that each licensed physical therapist shall complete the required amount of continuing education and ''shall provide the board with evidence of the completion of the continuing education'' and the similar requirement of section 9.1(j) of the act that each certified physical therapist assistant shall complete the required amount of continuing education and ''shall provide the board with evidence of the completion of the continuing education.'' Because section 3(a) of the act requires that the Board's regulations be consistent with the act, IRRC asked for the Board's specific statutory authority for allowing a licensee or certificate holder who has not met the continuing education requirement to continue to practice or provide services for 6 more months.
The Board's use of a post-renewal audit process to identify those who have not completed the required continuing education is consistent with the act and comports with constitutional requirements of due process. Under §§ 40.19(c)(5) and 40.191(c)(5), an applicant for renewal is required to ''verify that the [licensed physical therapist or certified physical therapist assistant, respectively,] has complied with the continuing education requirements mandated by. . .the act. . .during the biennial period immediately preceding the period for which renewal is sought in accordance with [§§ 40.67 and 40.192, respectively].'' This verification is the evidence upon which the Board may grant renewal. The Board simply could not possibly review documentation of continuing education for every licensed physical therapist and every certified physical therapist assistant during the window for renewal. Under §§ 40.19(c)(5) and 40.191(c)(5) ''[t]he Board will not renew [a license or certificate] if the [licensed physical therapist or certified physical therapist assistant] has not completed the continuing education required under. . .the act during the biennial period immediately preceding the period for which renewal is sought.'' After the close of the biennial renewal process, the Board conducts a random audit of licensees and certificate holders to verify compliance with the continuing education requirements. This post-renewal audit system is standard for the boards and commissions under the Bureau. For an individual who have provided the verification, it is not until the audit that the Board would obtain information suggesting that the licensee has not completed all required continuing education. And even then, the Board cannot remove a licensee from practice without due process of law. Because the license has been renewed and the licensee retains a property interest in the license, the Board cannot rescind renewal and provide the licensee with only the opportunity for a post-deprivation hearing without specific authorization from the General Assembly.
By this final-form rulemaking, the Board is not granting licensees who failed to complete required continuing education an additional 6 months to practice. The Board's renewal of the license or certificate based on the certification statement verifying completion of the continuing education authorizes the continued practice for the next biennium. Because there has been no final determination that the licensee failed to complete the required continuing education, the Board cannot yet remove the licensee from practice at the time of audit or any other time prior to a final determination even if through formal disciplinary action rather than an Act 48 citation. Only after a licensee or certificate holder admits the violation or a final adjudication is issued finding a violation of the continuing education requirements after a hearing can the Board take disciplinary action. The Board could have chosen to suspend the license or certificate until the deficient continuing education is remedied, rather than permitting the opportunity to remedy the deficiency. However, the Board's goal in enforcing the continuing education requirements is two-fold—deterrence and compliance. The Board believes the monetary civil penalty is adequate to deter a licensee or certificate holder from future violations, and the threat of additional discipline for failure to cure the deficiency will result in compliance within the required 6 months. It is worth noting again that an applicant for renewal who verifies completion of the required amount of continuing education without a basis to do so is separately subject to disciplinary action, including a suspension of the license.
IRRC noted that the rulemaking would require the licensed physical therapist or certified physical therapy assistant to ''make up the deficiency and provide proof of the entire required amount of continuing education in subsection (b).'' Because subsection (a) sets the required amount of continuing education and subsection (b) describes the documentation that, in general, a licensee or certificate holder must have to establish completion of a continuing education course or program, IRRC asked what would constitute the proof that a licensee or certificate holder would be required to submit and inquired if the Board meant to refer to subsection (a). Because this was not clear, the Board revised this sentence to require the licensee or certificate holder to ''make up the deficiency and provide proof, in accordance with subsection (b), of completion of the entire amount of continuing education required under subsection (a).''
IRRC also pointed to the existing provisions in §§ 40.67(b)(3) and 40.192(b)(3) that note that the Board will audit licensed physical therapists and certified physical therapist assistants to verify compliance with the continuing education requirements. IRRC expressed concern that the Board will only audit those who have been cited and provided documentation of making up the deficiency rather that fully reviewing each person's proof. The post-renewal audit process was developed for the licensing board office staff to determine that all licensees generally are in compliance with the continuing education requirements. Bureau statistics from the last 20 audits conducted Bureau-wide indicate that nearly 90% of licensees who are audited are found to be in compliance. The statistics from the Board's last audit demonstrate that 98% of licensees and certificate holders that are subject to audit are found to be in compliance. Those for whom the audit does not show compliance are referred to the Professional Compliance Office for possible disciplinary action. At this point, and with possible additional investigation, the Department's prosecuting arm now addresses that subset of licensees who did not establish compliance with the continuing education requirements. Under these regulations, when disciplinary action has begun by means of the issuance of an Act 48 citation (unless the matter is dismissed through appeal), the prosecution division will be expecting the later submission of proof of making up the deficient continuing education. The prosecution division will be expected to file formal action if the licensed physical therapist or certified physical therapist assistant has not provided adequate proof of completion of all required continuing education.
Finally, IRRC questioned how the Board determined that 6 months is a reasonable and feasible amount of time for the regulated community to make up continuing education deficiencies. The Board acknowledges that the General Assembly, in making completion of continuing education a condition precedent for renewal, determined that continuing education is necessary to maintain competence and therefore provides public protection. The Board determined that 6 months is long enough for the licensee to have had an opportunity to challenge a citation before a hearing examiner and possibly appeal to the Board. It is also long enough that the licensee has a reasonable opportunity to find and complete relevant continuing education courses. Additionally, it is short enough to minimize any additional notable deterioration in the licensee's skills and knowledge. Finally, 6 months is a reasonable period of time for the prosecution division to track and is a relatively simple and straightforward date for licensees and certificate holders to measure and follow.
As the Board was preparing this final-form rulemaking, the Legislative Reference Bureau contacted staff to inform them that the section number for the related schedule of civil penalties being promulgated by the Commissioner would need to change to § 43b.26 because the schedule of civil penalties for the State Board of Optometry would be added as § 43b.25. Therefore, the Board made appropriate revisions to this final-form rulemaking to correct the cross-references to § 43b.26 (relating to schedule of civil penalties—physical therapists and physical therapist assistants).
Fiscal Impact and Paperwork Requirements
This final-form rulemaking will not have adverse fiscal impact on the Commonwealth or its political subdivisions and will not impose additional paperwork requirements upon the Commonwealth, political subdivisions or the private sector.
Regulatory Review
Under section 5(a) of the Regulatory Review Act (71 P.S. § 745.5(a)), on October 31, 2014, the Board submitted a copy of the notice of proposed rulemaking, published at 44 Pa.B. 7178, to IRRC and the Chairpersons of the HPLC and the SCP/PLC for review and comment.
Under section 5(c) of the Regulatory Review Act, the Board shall submit to IRRC, the HPLC and the SCP/PLC copies of 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 and the HPLC.
Under section 5.1(j.2) of the Regulatory Review Act (71 P.S. § 745.5a(j.2)) on September 14, 2016, 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 September 15, 2016, and approved the final-form rulemaking.
Additional Information
Further information may be obtained by contacting Michelle Roberts, Board Administrator, State Board of Physical Therapy, P.O. Box 2649, Harrisburg, PA 17105-2649, ra-physical@pa.gov.
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) and 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 this final-form rulemaking do not enlarge the scope of proposed rulemaking published at 44 Pa.B. 7178.
(4) The final-form rulemaking adopted by this order is necessary and appropriate for the administration of the act.
Order
The Board, acting under its authorizing statute, orders that:
(a) The regulations of the Board, 49 Pa. Code Chapter 40, are amended by amending §§ 40.67 and 40.192 to read as set forth in Annex A, with ellipses referring to the existing text of the regulations.
(b) The Board shall submit this order and Annex A to the Office of Attorney General and the Office of General Counsel for approval 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) The final-form rulemaking shall take effect upon publication in the Pennsylvania Bulletin.
NORMAN L. JOHNSON, PT, DPT, DEd,
Chairperson(Editor's Note: See 46 Pa.B. 6643 (October 22, 2016) for a final-form rulemaking by the Bureau relating to this final-form rulemaking.)
(Editor's Note: See 46 Pa.B. 6195 (October 1, 2016) for IRRC's approval order.)
Fiscal Note: Fiscal Note 16A-6515 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 40. STATE BOARD OF PHYSICAL THERAPY
Subchapter A. PHYSICAL THERAPISTS
CONTINUING EDUCATION § 40.67. Continuing education for licensed physical therapist.
* * * * * (e) Authoring publications. A licensed physical therapist may earn continuing education credit for authoring publications as provided in this subsection.
(1) Prior to the end of the biennial renewal period for which credit is sought, the licensed physical therapist shall apply to the Board on forms provided by the Board and submit the documentation necessary to establish entitlement to credit.
(2) Subject to the limitations of paragraph (3), 1 contact hour of continuing education credit will be awarded for each hour spent in research or writing. Credit will not be awarded if the total research and writing time was less than 1 hour.
(3) Within the subject matter limitations of subsection (c), a licensed physical therapist may earn credit for authoring a publication as follows:
(i) Authoring or editing a book, not to exceed 15 contact hours.
(ii) Authoring or editing a chapter of a book, not to exceed 10 contact hours.
(iii) Authoring or reviewing a published peer-reviewed article, not to exceed 10 contact hours.
(iv) Authoring a non-peer-reviewed article published in a physical therapy publication, not to exceed 5 contact hours.
(4) Credit for authoring a publication will be awarded only for the biennial renewal period in which it was published.
(f) Disciplinary action authorized. Unless otherwise excused by the act or this chapter, failure to complete the minimum required amount of continuing education during the applicable renewal period will subject the licensee to discipline under section 12(c) of the act (63 P.S. § 1312(c)) in accordance with the schedule of civil penalties in § 43b.26 (relating to schedule of civil penalties—physical therapists and physical therapist assistants). Within 6 months after the issuance of a citation under § 43b.26 for failure to complete the required amount of continuing education, the licensee shall make up the deficiency and provide proof, in accordance with subsection (b), of completion of the entire amount of continuing education required under subsection (a). In addition to a civil penalty assessed under this subsection, failure to complete the required amount of continuing education and to provide the Board with proof of completion of the required amount of continuing education within 6 months after the issuance of a citation under § 43b.26 will subject the licensee to disciplinary action under section 11(a)(6) of the act for committing unprofessional conduct as defined in § 40.52(11). This subsection does not apply to a licensee who permitted the licensee's license to expire at the conclusion of a biennial renewal period for which the licensee did not complete the required amount of continuing education and did not practice the profession prior to reactivating that license under § 40.20(c) upon a demonstration that the licensee subsequently completed the required deficient continuing education.
Subchapter C. PHYSICAL THERAPIST ASSISTANTS
CONTINUING EDUCATION § 40.192. Continuing education for certified physical therapist assistant.
* * * * * (e) Authoring publications. A certified physical therapist assistant may earn continuing education credit for authoring publications as provided in this subsection.
(1) Prior to the end of the biennial renewal period for which credit is sought, the certified physical therapist assistant shall apply to the Board on forms provided by the Board and submit the documentation necessary to establish entitlement to credit.
(2) Subject to the limitations of paragraph (3), 1 contact hour of continuing education credit will be awarded for each hour spent in research or writing. Credit will not be awarded if the total research and writing time was less than 1 hour.
(3) Within the subject matter limitations of subsection (c), a certified physical therapist assistant may earn credit for authoring a publication as follows:
(i) Authoring or editing a book, not to exceed 15 contact hours.
(ii) Authoring or editing a chapter of a book, not to exceed 10 contact hours.
(iii) Authoring or reviewing a published peer-reviewed article, not to exceed 10 contact hours.
(iv) Authoring a non-peer-reviewed article published in a physical therapy publication, not to exceed 5 contact hours.
(4) Credit for authoring a publication will be awarded only for the biennial renewal period in which it was published.
(f) Disciplinary action authorized. Unless otherwise excused by the act or this chapter, failure to complete the minimum required amount of continuing education during the applicable renewal period will subject the certified physical therapist assistant to discipline under section 12(c) of the act (63 P.S. § 1312(c)) in accordance with the schedule of civil penalties in § 43b.26 (relating to schedule of civil penalties—physical therapists and physical therapist assistants). Within 6 months after the issuance of a citation under § 43b.26 for failure to complete the required amount of continuing education, the physical therapist assistant shall make up the deficiency and provide proof, in accordance with subsection (b), of completion of the entire amount of continuing education required under subsection (a). In addition to a civil penalty assessed under this subsection, failure to complete the required amount of continuing education and to provide the Board with proof of completion of the required amount of continuing education within 6 months after the issuance of a citation under § 43b.26 will subject the certified physical therapist assistant to disciplinary action under section 9.1(f) of the act for committing unprofessional conduct as provided in § 40.181(a)(6). This subsection does not apply to a certified physical therapist assistant who permitted the physical therapist assistant's certificate to expire at the conclusion of a biennial renewal period for which the physical therapist assistant did not complete the required amount of continuing education and did not provide patient services prior to reactivating that certificate under § 40.191(g) upon a demonstration that the physical therapist assistant subsequently completed the required deficient continuing education.
[Pa.B. Doc. No. 16-1808. Filed for public inspection October 21, 2016, 9:00 a.m.]
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