RULES AND REGULATIONS

BUREAU OF PROFESSIONAL AND OCCUPATIONAL AFFAIRS

[ 49 PA. CODE CH. 43b ]

Schedule of Civil Penalties—Podiatrists

[47 Pa.B. 6051]
[Saturday, September 30, 2017]

 The Commissioner of Professional and Occupational Affairs (Commissioner) adds § 43b.27 (relating to schedule of civil penalties—podiatrists) to read as set forth in Annex A.

Effective Date

 This final-form rulemaking will be effective upon publication in the Pennsylvania Bulletin and will apply to violations that occur on or after the effective date.

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. At the same time, a licensee who receives an Act 48 citation retains his due process rights 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 a 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 that it is necessary to implement the civil penalties in this final-form rulemaking to streamline the disciplinary process for lapsed license and continuing education violations.

Summary and Responses to Comments

 Notice of proposed rulemaking was published at 45 Pa.B. 2704 (June 6, 2015), with a 30-day public comment period. No public comments were received. The House Professional Licensure Committee (HPLC) responded on July 14, 2015, that it wishes to take no formal action until the final-form rulemaking is promulgated. The Senate Consumer Protection and Professional Licensure Committee (SCP/PLC) did not submit comments. On August 5, 2015, the Independent Regulatory Review Commission (IRRC) submitted comments.

 With regard to the proposed schedule of civil penalties for failure to complete required hours of continuing education during the 2 years preceding renewal or reactivation, IRRC asked whether the intent was to impose a civil penalty and not renew a license when a licensee fails to complete the required continuing education. Furthermore, IRRC also asked about how the Board intends to follow section 9.1 of the act (63 P.S. § 42.9a)) that licensees may not renew a license if the licensee has not completed the required hours of continuing education.

 The civil penalty schedule for failure to complete the required hours of continuing education in accordance with § 29.61(a) (relating to requirements for biennial renewal and eligibility to conduct educational conferences) is in addition to, and not in lieu of, the statutory requirement under section 9.1 of the act that licensees may not renew a license if the licensee has not completed the required hours of continuing education. That is, the Board will not renew a license unless the licensee certifies to the Board, subject to the penalties of 18 Pa.C.S. § 4904 (relating to unsworn falsification to authorities), that all required continuing education has been completed in accordance with § 29.61(c). If the licensee cannot certify that the licensee has completed 50 clock hours of continuing education in approved courses by the renewal deadline, the Board does not renew the individual's license and the license expires. Thereafter, the Board will reactivate the license only if the licensee subsequently proves compliance with the continuing education requirement. Upon review, it became apparent that because a license is not reactivated without proof of compliance, there could never be a situation when a citation would be issued for ''failure to complete required hours of continuing education during the 2 years preceding. . .reactivation.'' For that reason, the final-form rulemaking was revised to delete this language and apply only to renewal.

 Conversely, it is possible that after a licensee has certified compliance with the continuing education requirements and been renewed, a postrenewal audit may demonstrate that a licensee failed to complete all 50 required clock hours, or failed to complete at least 30 clock hours in courses and programs in podiatry approved by the Board or the Council on Podiatric Medical Education, or exceeded the maximum of 10 hours that may be completed in courses and programs that involve the use of the Internet or the reading of professional journals or magazine articles. See § 29.61(a). It is a postrenewal audit that identifies deficiencies that would trigger the issuance of a citation under this civil penalty schedule.

 Additionally, the Commissioner is in the process of developing a system for the boards and commissions within the Bureau to track compliance with the continuing education requirements as part of the new Pennsylvania Licensing System (PALS). Initially, each licensee will be able to track completion of continuing education and upload certificates of completion to the licensee's dashboard. The Bureau's intent is that ultimately, when the continuing education modules of PALS are fully implemented, completion of the continuing education requirements will be validated up front and a licensee will be unable to renew until full compliance has been verified, in much the same way that the Bureau currently validates completion of the mandatory continuing education in child abuse recognition and reporting required under 23 Pa.C.S. § 6383(b)(2) (relating to education and training).

 With regard to the civil penalty schedule for practicing or offering to practice podiatry by a person whose license is expired, IRRC raised two concerns. First, IRRC asked whether, under a first offense, a licensee would be subject to a fine of $500 or $1,000 if the licensee practiced on a lapsed license for a period of 5 months and 1 day. IRRC also asked whether a month would mean a whole month and suggested that the Bureau clarify this in the final-form rulemaking. IRRC's second concern with the schedule was that first and second offenses were being treated differently so that a licensee who practiced on a lapsed license for 5 months and 1 day could receive a $1,000 civil penalty for a first offense (5—12 months) and receive only a $500 civil penalty for a second offense (less than 6 months). IRRC also observed that under the proposed schedule a licensee being charged with a first offense for practicing on an expired license for 3 or 4 months would pay the same civil penalty as a licensee being charged with a second offense for the same period of time ($500). IRRC stated that it would be more reasonable if the penalties for second offenses are higher than the penalties for first offenses.

 To address IRRC's two concerns regarding civil penalties for expired licenses, the Commissioner, with approval of the Board, revised the schedule of civil penalties to set the civil penalty for each month or portion of a month of practice on an expired license. For a first offense, the penalty for practicing on an expired license would be $50 per month or portion of a month, not to exceed $1,000. Violations exceeding 20 months would result in formal disciplinary action. For a second offense, the penalty would be increased to $100 per month or portion of a month, not to exceed $1,000, with violations continuing more than 10 months resulting in formal disciplinary action. Finally, for subsequent offenses, the penalty would be determined through formal disciplinary action. In this way, the civil penalties could not result in the inequities identified by IRRC in its comments.

Fiscal Impact and Paperwork Requirements

 This final-form rulemaking will not have adverse fiscal impact on the Commonwealth or its political subdivisions, and 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 violations subject to the Act 48 citation process. The only fiscal impact of this final-form rulemaking will be borne by persons who violate the act or regulations of the Board and are subject to the civil penalties in § 43b.27.

Sunset Date

 The Bureau and the Board continuously monitor the effectiveness of 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 Board submitted a copy of the notice of proposed rulemaking, published at 45 Pa.B. 2704, 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 August 23, 2017, 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 August 24, 2017, and approved the final-form rulemaking.

Additional Information

 Further information may be obtained by contacting the Commissioner or the State Board of Podiatry, P.O. Box 2649, Harrisburg, PA 17105-2649, RA-podiatry@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) (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) This final-form rulemaking is necessary and appropriate for administering and enforcing the authorizing act identified in this preamble.

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.27 to read as set forth in Annex A.

 (b) The Commissioner 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 Commissioner shall submit this order and Annex A to IRRC, the HPLC and the SCP/PLC as required by law.

 (d) The Commissioner shall certify this order and Annex A and deposit them with the Legislative Reference Bureau as required by law.

 (e) This final-form rulemaking shall take effect on publication in the Pennsylvania Bulletin.

IAN J. HARLOW, 
Commissioner of Professional and Occupational Affairs

 (Editor's Note: See 47 Pa.B. 5761 (September 9, 2017) for IRRC's approval order.)

 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—$50 per month,  or portion of a month, not  to exceed $1,000; over 20  months—formal action 2nd offense—$100 per month,  or portion of a month, not  to exceed $1,000; over 10  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	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. 17-1614. Filed for public inspection September 29, 2017, 9:00 a.m.]

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