RULES AND REGULATIONS

BUREAU OF PROFESSIONAL AND OCCUPATIONAL AFFAIRS

[ 49 PA. CODE CH. 43b ]

Schedule of Civil Penalties—Physical Therapists and Physical Therapist Assistants

[46 Pa.B. 6643]
[Saturday, October 22, 2016]

 The Commissioner of Professional and Occupational Affairs (Commissioner) adds § 43b.26 (relating to schedule of civil penalties—physical therapists and physical therapist assistants) 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 rulemaking is authorized under section 5(a) of the act of July 2, 1993 (P.L. 345, No. 48) (Act 48) (63 P.S. § 2205(a)).

Background and Need for this Final-Form Rulemaking

 Section 5(a) of Act 48 provides that the 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 the licensing boards and agents of the Bureau may issue citations for violations covered by the schedule of civil penalties. 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, a licensee who receives an Act 48 citation retains the due process right of appeal prior to the imposition of discipline. The State Board of Physical Therapy (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 proposed 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. Because the primary objective of the disciplinary process is compliance, under a separate final-form rulemaking promulgated 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 final-form rulemaking is intended to apply to those 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 Physical Therapy Practice 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 §§ 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 Commissioner, in consultation with the Board, therefore establishes a schedule of civil penalties to be enforced by citation under Act 48. For a first offense violation of failing to complete the required amount of mandatory continuing education during the biennial renewal period under § 40.67(a) or § 40.192(a), a civil penalty of $25 for each credit hour that the licensee or certificate holder, respectively, 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 is $50 per hour of deficiency, and for a third offense violation with a deficiency of 10 hours or less the civil penalty is $100 per hour of deficiency. Offenses beyond these amounts of deficiency and all subsequent offenses will not be subject to an Act 48 citation, but rather will proceed through the formal disciplinary process. Additionally, the Commissioner, in consultation with the Board, establishes for a first offense of failing to respond timely to an audit notice under § 40.67(b)(3) or § 40.192(b)(3) by a licensee or certificate holder, respectively, 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.

 Additionally, § 40.20(b) (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 also proposed a civil penalty schedule for practice on a lapsed or expired license or certificate, 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. Because failure to renew a license might be an attempt to avoid the continuing education 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 will instead be subject to formal disciplinary action where the Board has the authority to suspend or revoke a license.

 The Commissioner, in consultation with the Board, establishes for practicing on a lapsed or expired license or certificate (while in compliance with continuing education requirements) in violation of § 40.20(b) or § 40.191(j), respectively, 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 will not be subject to an Act 48 citation, but rather would proceed through the formal disciplinary process.

Summary of Comments and Responses to Proposed Rulemaking

 The Commissioner published the proposed rulemaking at 44 Pa.B. 7173 (November 15, 2014) with a 30-day public comment period. The Commissioner received no comments from the public. The Commissioner received no comments from the House Professional Licensure Committee (HPLC) or the Senate Consumer Protection and Professional Licensure Committee (SCP/PLC) as part of their review of proposed rulemaking under the Regulatory Review Act (71 P.S. §§ 745.1—745.14). The Independent Regulatory Review Commission (IRRC) notified the Commissioner that it had no objections, comments or recommendations and that, if the final-form rulemaking was delivered without revisions and the legislative committees do not take any action, the final-form rulemaking would be deemed approved.

 As the Board was preparing this final-form rulemaking, the Legislative Reference Bureau contacted staff to inform the Commissioner and the Board that the section number would need to be changed because the schedule of civil penalties for the State Board of Optometry would be added as § 43b.25. Therefore, proposed § 43b.25 is renumbered and adopted in this final-form rulemaking as § 43b.26, and all cross-references in the Board's companion final-form rulemaking regarding continuing education enforcement have been corrected. No other changes have been made to this final-form rulemaking.

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. 7173, 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.

 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(g) of the Regulatory Review Act, the final-form rulemaking was deemed approved by IRRC effective September 14, 2016.

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 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) and regulations promulgated thereunder, 1 Pa. Code §§ 7.1 and 7.2.

 (2) A public comment period was provided as required by law.

 (3) This final-form rulemaking does not include any amendments that would enlarge the scope of proposed rulemaking published at 44 Pa.B. 7173.

 (4) The final-form rulemaking adopted by this order is necessary and appropriate for the administration of the Physical Therapy Practice Act.

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.26 to read as set forth in Annex A.

 (Editor's Note: This section was proposed as § 43b.25 and is renumbered in this final-form rulemaking as § 43b.26 due to an intervening final-form rulemaking.)

 (b) The Bureau 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 Bureau 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.

IAN J. HARLOW, 
Commissioner

 (Editor's Note: See 46 Pa.B. 6639 (October 22, 2016) for a final-form rulemaking by the Board 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-6516 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.26. 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 set forth 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 set forth 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. 16-1809. Filed for public inspection October 21, 2016, 9:00 a.m.]

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