RULES AND REGULATIONS
Title 49—PROFESSIONAL AND VOCATIONAL STANDARDS
STATE BOARD OF OPTOMETRY
[49 PA. CODE CH. 23]
License by Endorsement
[53 Pa.B. 5765]
[Saturday, September 16, 2023]The State Board of Optometry (Board) hereby amends Chapter 23 (relating to State Board of Optometry) by adding §§ 23.27, 23.27a and 23.27b (relating to definitions; license by endorsement under 63 Pa.C.S. § 3111; and provisional endorsement license) to read as set forth in Annex A.
Effective Date
This final-form rulemaking will be effective upon publication in the Pennsylvania Bulletin.
Statutory Authority
Section 3111 of 63 Pa.C.S. (relating to licensure by endorsement) requires licensing boards and commissions to ''issue a license, certificate, registration or permit to an applicant to allow practice in this Commonwealth'' provided the applicant meets the following criteria: ''[h]olds a current license, certificate, registration or permit from another state, territory or country'' whose licensing ''requirements are substantially equivalent to or exceed the requirements. . .in this Commonwealth;'' ''[d]emonstrates competency;'' ''[h]as not committed any act that constitutes grounds for refusal, suspension or revocation of a license, certificate, registration or permit to practice that profession or occupation in this Commonwealth, unless the board or commission determines'' this conduct is not an impediment to granting the ''license, certificate, registration or permit;'' ''[i]s in good standing and has not been disciplined by the jurisdiction that issued the license, certificate, registration or permit, unless the. . .board or. . .commission determines'' this conduct is not an impediment to granting the ''license, certificate, registration or permit;'' and the applicant ''pays any fees established by. . .regulation.'' Additionally, 63 Pa.C.S. § 3111 authorizes boards and commissions to ''issue a provisional license, certificate, registration or permit'' while an applicant is satisfying remaining requirements for licensure by endorsement, for which the Board must set by regulation the terms of expiration. Additionally, section 3(b)(14) of the Optometric Practice and Licensure Act (act) (63 P.S. § 244.3(b)(14)) provides the Board with authority to promulgate all rules and regulations necessary to carry out the purposes of the act.
The act of July 1, 2020, (P.L. 575, No. 53) added 63 Pa.C.S. § 3111 as part of the consolidation of the act of July 2, 1993 (P.L. 345, No. 48) (Act 48) into 63 Pa.C.S. Chapter 31 (relating to powers and duties). The text of 63 Pa.C.S. § 3111 was originally added to Act 48 by the act of July 1, 2019 (P.L. 292, No. 41) (Act 41).
Background and Need for the Amendments
This final-form rulemaking is needed to effectuate 63 Pa.C.S. § 3111, which requires the Board to issue a license, certificate, registration or permit to applicants who meet the requirements for licensure by endorsement as set forth in 63 Pa.C.S. § 3111. Under 63 Pa.C.S. § 3111, the Board must determine whether the jurisdiction's standards for licensure are substantially equivalent to or exceed those established by the Board. Additionally, 63 Pa.C.S. § 3111 requires the Board to determine the methods of competency, including completion of continuing education or experience in the profession or occupation for at least 2 of the 5 years immediately preceding the filing of the application, and must establish, by regulation, the expiration of a provisional endorsement license. This final-form rulemaking sets forth the criteria for eligibility for licensure by endorsement, including the specific methods required for an applicant to demonstrate competency as well as requirements for granting a provisional endorsement license.
The Board published a notice of proposed rulemaking at 51 Pa.B. 6046 (September 18, 2021), for 30 days of public comment. The Board did not receive any comments from the public. The House Professional Licensure Committee (HPLC) submitted comments. As part of its review under the Regulatory Review Act (RRA), the IndependentRegulatory Review Commission (IRRC) submitted comments. The Board received no comments from the Senate Consumer Protections and Licensure Committee (SCP/PLC). The following represents a summary of the comments received and the Board's response.
Summary of the HPLC Comments and the Board's Response
The HPLC commented on § 23.27a(a)(1)(i) regarding license by endorsement which requires the applicant to provide a copy of the current law and regulations, including the scope of practice, in the jurisdiction where the applicant holds an active license. The HPLC expressed a concern that this is not a specific statutory requirement and suggested it should be Board Counsel's responsibility to research the laws and regulations of the jurisdiction from which the applicant is applying. For the following reasons the Board disagrees and is not amending § 23.27a(a)(1)(i) in this final-form rulemaking; 1) to date the Board has received only six applications and the applicants have been able to provide the Board with the necessary laws and regulations quickly and easily; 2) it is the applicant's burden to prove to the Board that qualifications for licensure are met; and 3) putting this burden on the Board and its legal counsel unnecessarily puts a financial burden on the Board and to its licensees that finance the Board through biennial renewal fees, or if this cost is applied to application fees, then the cost to apply for a license would have to be increased. Applicants generally have access to the laws and regulations of the jurisdiction where they are licensed. It is of particular concern when an applicant is licensed in another country. This type of research is overly burdensome and could be costly to the Board. While the Board will take steps to verify the laws and regulations of another jurisdiction, having the applicant provide that initial information is the most expedient and fiscally prudent approach.
The HPLC next commented on § 23.27a(a)(4) which on proposed stated that the applicant could not have been disciplined by the jurisdiction that issued the license, certificate, registration or permit. The HPLC suggested clarifying this paragraph by specifying the type of discipline and providing a timeframe. The HPLC suggested that the Board distinguish between formal discipline and a complaint. The Board does not think it is necessary to make this type of distinction. A complaint is not considered to be formal or informal discipline. Additionally, the Board does not believe it is appropriate to predetermine the type of discipline or the timeframe discipline occurred. The Board, instead, believes it is appropriate to evaluate discipline on a case-by-case basis. As indicated in § 23.27a(c), the Board is authorized to determine that discipline is not an impediment to licensure under 63 Pa.C.S. § 3111. In determining whether the discipline is an impediment to licensure, it is dutybound to apply the caselaw and other applicable laws. See Secretary of Revenue v. John's Vending Corp., 453 Pa. 488, 309 A.2d 358 (1973); Bethea-Tumani v. Bureau of Professional and Occupational Affairs, State Board of Nursing, 993 A.2d 921 (Pa. Cmwlth. 2010). As part of that analysis, the Board may consider the facts and circumstances surrounding the prohibited act or disciplinary action, increase in age or maturity of the individual since the date of the prohibited act or disciplinary action, disciplinary history or lack of disciplinary history before and after the date of the prohibited act or disciplinary action, successful completion of education and training activities relating to the prohibited act or disciplinary action and any other information relating to the fitness of the individual for licensure. To be consistent with the language in § 23.27a(a)(3) and (4), the Board adds the word ''discipline'' to the title of § 23.27a(c).
The HPLC also commented on § 23.27b(b)(1) regarding provisional endorsement license noting that this provision would allow the Board to issue a provisional license for less than a year and asked why the Board would need to do so. Section 3111(b)(2) of 63 Pa.C.S. requires the Board to establish an expiration date for provisional licenses in its regulations. The Board, along with most other boards and commissions under the Bureau of Professional and Occupational Affairs (Bureau) have determined that expiration of 1 year is generally an appropriate timeframe for most applicants. However, in the interest of public safety, the Board has determined that providing some discretion to the Board is necessary for instances where the remaining licensure requirements do not require a full year to complete the remaining licensure requirements. It is in the public interest to ensure that a licensee becomes qualified or competent as expeditiously as possible. While the Board certainly will provide a full year when the facts warrant it, it wants its licensees to be qualified and competent as soon as practicable. An example would be where an applicant from another jurisdiction only needs to complete 10 more continuing education credits. To allow 12 months to establish competency when competency could be accomplished in a shorter term would not be in the best interest of public safety. This is because the Board believes it is best for applicants to meet the competency requirements within a reasonable time period that is tied to the length of time necessary to meet the specific competency requirement.
The HPLC also commented on subsection (c), noting that the Board did not include the expiration date as a means by which the provisional endorsement license may terminate. The Board agrees with the HPLC and has included the expiration date as means by which the provisional endorsement license may terminate. To clarify this subsection, the Board also included the granting of a license as a means by which the provisional endorsement license would also terminate. Additionally, the Board made non-substantive amendments to subsection (c) to improve clarity and readability.
The HPLC commented that § 23.27b(d) is unintentionally vague and asked the Board to allow applicants to reapply for multiple provisional licenses. The Board does not believe it is necessary or appropriate to allow multiple provisional licenses. A provisional license is an unrestricted license that is issued to an applicant in an effort to provide a short period of time (of up to 1 year) to satisfy remaining licensing requirements. While the Board is reluctant to issue an unrestricted license to an applicant who has not met the licensure standards or who has not proven competency, the General Assembly gave boards the discretion to do so as long as there was an expiration to that provisional license. Thus, the provisional license is meant to be a temporary license, on a short-term basis, to allow an applicant to begin practicing while completing remaining licensing requirements. The Board's regulations do allow for requests for an extension up to 1 additional year; the Board believes this timeframe is more than sufficient. The Board is concerned that allowing for multiple provisional licenses could be used as a mechanism to circumvent licensure standards. An applicant may certainly apply for an optometric license through § 23.27a after a provisional license expires; however, if the applicant does not meet the licensure standards after having a provisional license and having the option to apply for an extension, the applicant would not be eligible to apply for or receive an additional provisional license.
Summary of IRRC's Comments and the Board's Response
IRRC, in its comment, identified the previously stated HPLC comments. IRRC indicated that it will consider the HPLC comments and the Board's response to the issues raised in determining whether the regulation is in the public interest. The reasons provided previously, in response to the HPLC comments, show that that the regulation is in the public interest.
IRRC commented regarding the Regulatory Analysis Form (RAF) Question 19 and the cost to the regulated community for translation. This final-form rulemaking is amended to include a specific estimate of costs to the regulated community for translation of an applicable law, regulation or rule.
IRRC requested that the RAF be updated to include a list of specific persons or groups, or both, involved in developing and drafting the proposal. The Board has attached a list of stakeholders to the final-form RAF.
Additionally, IRRC asked the Board to provide an updated RAF that includes an estimate of the costs that would be associated with having the regulation or rule be translated by a professional service. The Board has updated the RAF to include an estimate of these costs.
Finally, IRRC requested that the title of Chapter 23 be amended to reflect the proposed content pertaining to licensure by endorsement. The undesignated header ''License by Endorsement under 63 Pa.C.S. § 6111'' is added as suggested by IRRC.
Miscellaneous Clarifications
Twenty-seven boards under the Bureau are drafting and publishing licensure by endorsement regulations. In an effort to keep language in the regulations as consistent as possible, the Board is amending the regulations based upon comments during the review process of other regulations. The following amendments are stylistic and do not have a substantive impact on the regulations.
Under § 23.27a(a)(2)(i) of the proposed rulemaking, to demonstrate competency by experience, the proposed regulations require active engagement in the practice of optometry for at least 2 of the 5 years immediately preceding the filing of the application with the Board. In drafting the proposed regulation, the Board assumed that the applicable experience would have been obtained in the jurisdiction under which the applicant was applying for licensure, and for which the Board would have determined that jurisdiction's licensure standards were substantially equivalent to the Board's licensure standards. To be more inclusive, the Board amends § 23.27a(a)(2)(i) to clarify that experience must be obtained under a license, certificate, registration or permit in a jurisdiction or jurisdictions that have substantially equivalent licensure standards. Thus, the amendment makes clear that the Board will consider experience accumulated in more than one jurisdiction when calculating the required experience provided that those jurisdictions have substantially equivalent licensure standards.
The Board amends § 23.27a(a)(2)(ii) to clarify that completion of child abuse recognition and reporting training required under paragraph (7) may be attributed to the 30 hours of continuing education required to demonstrate competency. The Board currently allows continuing education in child abuse recognition and reporting to be attributed to the 30 hours of continuing education required for biennial renewal. Thus, to maintain consistency, the Board decided to allow the child abuse recognition and reporting training to be attributed to the 30 hours of continuing education required under § 23.27a(a)(2)(ii).
The Board makes minor amendments to § 23.27a(a), 23.27a(a)(5)—(7) and 23.27a(d) for stylistic consistency. The revisions do not substantively change the meaning of the provisions. The Board amends § 23.27a(b) to clarify that the Board may require, instead of request, submission of additional information. In § 23.27a(c), to improve clarity, the Board adds the term ''discipline'' to the heading to clarify that subsection (c) applies to prohibited acts and discipline. The Board also replaces the term ''licensure'' with ''license'' in § 23.27b(d) for consistency.
Fiscal Impact and Paperwork Requirements
This final-form rulemaking should have no fiscal impact on the Commonwealth or its political subdivisions. Only minor paperwork requirements are imposed for the Board to develop a form for applying for license by endorsement.
Sunset Date
The Board continually monitors the cost effectiveness of its regulations. Therefore, no sunset date has been assigned.
Regulatory Review
Under section 5(a) of the RRA (71 P.S. § 745.5(a)), on September 2, 2021, the Board submitted a copy of the notice of proposed rulemaking, published at 51 Pa.B. 6046 and a copy of a RAF to IRRC and to the HPLC and the SCP/PLC for review and comment. A copy of this material is available to the public upon request.
Under section 5(c) of the RRA (71 P.S. § 745.5(c)), the Board shall submit to IRRC, the HPLC and the SCP/PLC copies of comments received as well as other documents when requested. In preparing the final-form regulation, the Board considered comments received from IRRC and the HPLC. No public comments were received. The Board received no comments from the SCP/PLC.
Under section 5.1(a) of the RRA (71 P.S. § 745.5a(a)), on May 22, 2023, the Board delivered this final-form rulemaking to IRRC, the HPLC and the SCP/PLC. Under section 5.1(j.2) of the RRA on July 12, 2023, the final-form rulemaking was deemed approved by the HPLC and the SCP/PLC. Under section 5.1(e) of the RRA, IRRC met on July 13, 2023, and approved the final-form rulemaking.
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) (45 P.S. §§ 1201 and 1202), referred to as the Commonwealth Documents Law, and regulations promulgated thereunder, 1 Pa. Code §§ 7.1 and 7.2 (relating to notice of proposed rulemaking required; and adoption of regulations).
(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 51 Pa.B. 6046.
(4) The final-form rulemaking adopted by this order is necessary and appropriate for the administration of 63 Pa.C.S. § 3111 and the act.
Order
The Board, acting under its authorizing statute, orders that:
(a) The regulations of the Board, 49 Pa. Code Chapter 23, are amended by adding §§ 23.27, 23.27a and 23.27b to read as set forth in Annex A.
(b) The Board shall submit this final-form rulemaking to the Office of Attorney General and the Office of General Counsel for approval as required by law.
(c) The Board shall submit this final-form rulemaking to IRRC, the HPLC and the SCP/PLC as required by law.
(d) The Board shall certify this final-form rulemaking and deposit them with the Legislative Reference Bureau as required by law.
(e) This final-form rulemaking shall take effect upon publication in the Pennsylvania Bulletin.
LUANNE CHUBB, OD,
Chairperson(Editor's Note: See 53 Pa.B. 4068 (July 29, 2023) for IRRC's approval order.)
Fiscal Note: Fiscal Note 16A-5218 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 23. STATE BOARD OF OPTOMETRY
LICENSE BY ENDORSEMENT UNDER
63 PA.C.S. § 3111§ 23.27. Definitions.
The following word or term, when used in § 23.27a (relating to license by endorsement under 63 Pa.C.S. § 3111) has the following meaning, unless the context clearly indicates otherwise:
Jurisdiction—A state, territory or country.
§ 23.27a. License by endorsement under 63 Pa.C.S. § 3111.
(a) Requirements for issuance. To be issued a license by endorsement under 63 Pa.C.S. § 3111 (relating to licensure by endorsement), an applicant shall satisfy all of the following conditions:
(1) Have a current license, certification, registration or permit in good standing to practice optometry in another jurisdiction whose standards are substantially equivalent to or exceed those established under section 4 of the act (63 P.S. § 244.4) and §§ 23.11—23.15, 23.202 and 23.205. The following apply:
(i) An applicant must submit a copy of the current applicable law, regulation or other rule governing licensure, certification, registration or permit requirements and scope of practice in the jurisdiction that issued the license, certificate, registration or permit.
(ii) If the applicable law, regulation or other rule is in a language other than English, at the applicant's expense, the applicable law, regulation or other rule shall be translated by a professional translation service and verified to be complete and accurate.
(iii) The copy of the applicable law, regulation or other rule must include the enactment date.
(2) Demonstrate competency by one of the following:
(i) Experience in the practice of optometry by demonstrating, at a minimum, that the applicant has actively engaged in the practice of optometry under a license, certificate, registration or permit in a jurisdiction or jurisdictions that have substantially equivalent licensure standards for at least 2 of the 5 years immediately preceding the filing of the application with the Board.
(ii) Completion of 30 hours of continuing education that meets the requirements of §§ 23.82 and 23.83 (relating to continuing education hour requirements; continuing education reporting; audit and enforcement; and continuing education subject matter) during the 24 months immediately preceding the date of the application. Completion of child abuse recognition and reporting training under paragraph (7) may be attributed to the 30 hours of continuing education.
(iii) Achieve a passing score on the NBEO Clinical Skills Assessment Examination or its equivalent, as determined by the Board, within 2 years immediately preceding the date of the application.
(3) Have not committed any act prohibited by section 7 of the act (63 P.S. § 244.7) or §§ 23.61—23.65 (relating to unlawful practices).
(4) Have not been disciplined by the jurisdiction that issued the license, certificate, registration or permit.
(5) Have paid the license application fee as required by § 23.91 (relating to fees).
(6) Have applied for licensure in accordance with this chapter in the manner and format prescribed by the Board.
(7) Have completed 3 hours of training in child abuse recognition and reporting from a provider approved by the Department of Human Services as required under 23 Pa.C.S. § 6383(b)(3)(i) (relating to education and training).
(b) Interview and additional information. An applicant may be required to appear before the Board for a personal interview and may be required to submit additional information, including supporting documentation relating to competency and experience. The applicant may request the interview to be conducted by video teleconference for good cause shown.
(c) Prohibited acts and discipline. Notwithstanding subsection (a)(3) and (4), the Board may, in its discretion, determine that an act prohibited under section 7 of the act or §§ 23.61—23.65, or disciplinary action by a jurisdiction is not an impediment to licensure under 63 Pa.C.S. § 3111.
§ 23.27b. Provisional endorsement license.
(a) Provisional endorsement license. The Board may, in its discretion, issue a provisional endorsement license to an applicant while the applicant is satisfying remaining requirements for licensure by endorsement under 63 Pa.C.S. § 3111 (relating to licensure by endorsement) and § 23.27a (relating to license by endorsement under 63 Pa.C.S. § 3111).
(b) Expiration of a provisional endorsement license.
(1) An individual holding a provisional endorsement license may practice for up to 1 year after issuance of the provisional endorsement license. The Board, in its discretion, may determine that an expiration date of less than 1 year is appropriate.
(2) Upon a written request and a showing of good cause, the Board may grant an extension of no longer than 1 year from the expiration date of the provisional endorsement license.
(c) Termination of a provisional endorsement license. A provisional endorsement license terminates if any of the following occurs:
(1) When the Board completes its assessment of the applicant and grants or denies the license.
(2) When the holder of the provisional license fails to comply with the terms of the provisional endorsement license.
(3) When the provisional endorsement license expires.
(d) Reapplication. An individual may reapply for license by endorsement under § 23.27a after expiration or termination of a provisional endorsement license, but the individual may not be issued a subsequent provisional endorsement license.
[Pa.B. Doc. No. 23-1245. Filed for public inspection September 15, 2023, 9:00 a.m.]
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