RULES AND REGULATIONS

Title 49—PROFESSIONAL AND VOCATIONAL STANDARDS

STATE BOARD OF CHIROPRACTIC

[ 49 PA. CODE CH. 5 ]

Fees

[54 Pa.B. 3152]
[Saturday, June 8, 2024]

 The State Board of Chiropractic (Board) and the Acting Commissioner of the Bureau of Professional and Occupational Affairs (Commissioner) amend Chapter 5 (relating to State Board of Chiropractic) by amending §§ 5.6, 5.15 and 5.16 (relating to fees; licensure examinations; and failure on examination; reexamination) to read as set forth in Annex A.

Effective Date

 This final-form rulemaking will be effective upon publication in the Pennsylvania Bulletin. The first graduated increases for application fees will be implemented on the date of publication of this final-form rulemaking in the Pennsylvania Bulletin, and then subsequently increased a second time on July 1, 2026, and a third time on July 1, 2028.

 The increased biennial registration fees will be effective upon publication of this final-form rulemaking in the Pennsylvania Bulletin, enabling the Board to implement the first increase for the September 2, 2024—September 1, 2026, biennial registration period. This first increase will impact licenses that expire on September 1, 2024. The fee will subsequently increase a second time for the September 2, 2026—September 1, 2028, biennial registration, impacting licenses that expire on September 1, 2026, and then increase a third time for the September 2, 2028—September 1, 2030, biennial registration period, impacting licenses that expire on September 1, 2028, and thereafter.

Statutory Authority

 Under section 302(3) of the Chiropractic Practice Act (act) (63 P.S. § 625.302(3)), the Board is authorized to promulgate rules and regulations necessary to carry out the act. Under section 1101(a) of the act (63 P.S. § 625.1101(a)), the Board shall, by regulation, fix the fees required for examination, licensure, renewal of licenses and limited licenses. Section 1101(b) of the act provides that if the revenues raised by fees, fines and civil penalties imposed are not sufficient to meet expenditures over a 2-year period, the Board shall increase those fees by regulation so that the projected revenues will meet or exceed projected expenditures. Additionally, section 502 of the act (63 P.S. § 625.502) provides the nature and content of the examination.

 The Commissioner is appointed by the Governor and has a number of powers and duties. Specifically, under section 810(a)(7) of The Administrative Code of 1929 (71 P.S. § 279.1(a)(7)), the Commissioner has the power and duty, ''[u]nless otherwise provided by law, to fix the fees to be charged by the several professional and occupational examining boards within the department.''

Background and Need for this Final-Form Rulemaking

 This final-form rulemaking increases application fees to reflect updated costs of processing applications and increases the Board's biennial registration fees to ensure its revenue meets or exceeds its current and projected expenses. The Board last increased its fees in 1996.

 This final-form rulemaking increases the following application fees on a graduated basis: application for chiropractic licensure by examination; application for chiropractic licensure by reciprocity; application for certification to use adjunctive procedures; and application for continuing education course approval. Approximately 916 applicants will be impacted annually by the increased application fees.

 The Board is also implementing a graduated biennial registration fee increase for chiropractors. There are approximately 4,011 licensed chiropractors who will be required to pay more for biennial registration. Chiropractic licenses expire on September 1 of every even numbered year. The first of three graduated biennial registration fee increases will be implemented and in effect for the September 2, 2024—September 1, 2026, biennial registration period.

 Finally, this final-form rulemaking eliminates references to the Pennsylvania Chiropractic Law Examination (PCLE), including the PCLE fee, to reflect the Board's current license application procedure. Other health boards under the Bureau of Professional and Occupational Affairs (Bureau) do not perform this type of testing and the Board no longer believes testing an applicant's knowledge of Pennsylvania law is a necessary component of licensure.

 The Board's operations are supported from the revenue it generates through fees, fines and civil penalties. The act provides that the Board shall increase fees when expenditures outpace revenue. The majority of general operating expenses of the Board are borne by the licensee population through revenue generated by the biennial registration of licenses. A small percentage of its revenue comes from application fees, fines and civil penalties. Board expenses are the result of direct charges, timesheet-based charges and licensee-based charges.

 The Board receives an annual report from the Department of State's Bureau of Finance and Procurement (BFP) regarding the Board's income and expenses. The BFP presented the following information to the Board at its public meeting on February 24, 2022.

 In fiscal years (FY) 2018-2019 and 2019-2020, the Board incurred expenses of $535,006.75 and $581,536.81, respectively, and received $884,530.72 and $43,090.33 in revenue, respectively. In other words, over that 2-year time frame, the Board's total expenses ($1,116,543.56) outpaced its total revenue ($927,621.05) by $188,922.51. The Board's overall remaining balance at the end of FY 2019-2020 was $1,685,626.02.

 In FYs 2020-2021 and 2021-2022, the Board's expenses were $563,936.23 and $540,000 (projected), respectively, with revenues of $854,455.90 and $43,000 (projected), respectively. In other words, over that 2-year time frame, the Board's total expenses ($1,103,936.23) outpaced its total revenue ($897,455.90) by $206,480.33. The Board's overall remaining balance at the end of FY 2021-2022 was $1,479,145.69.

 In FYs 2022-2023 and 2023-2024, the Board's expenses were projected to be $581,000 and $556,000, respectively, with revenues projected to be $890,000 and $43,000, respectively, meaning for that 2-year time frame, the Board's total expenses ($1,137,000) are projected to outpace its total revenue ($933,000) by $204,000. The Board's overall remaining balance at the end of FY 2023-2024 is projected to be $1,275,145.69.

 According to the BFP's projections, if the Board were to keep its current fee structure in place (no increases for any of its fees), the Board's annual revenue would remain at $933,000 for each of the next 6 years. However, its expenses are projected to grow each year, so that the amount the Board would be spending above and beyond its revenue would become increasingly larger each successive year. The Board's projected revenue would fall short of meeting its expenses by $238,000 in FY 2024-2025/ FY 2025-2026, then by $273,000 in FY 2026-2027/FY 2027-2028, and then by $309,000 in FY 2028-2029/FY 2029-2030. Those projections also show a significant reduction in the Board's overall remaining balance, which by the end of FY 2029-2030 would be down to $455,145.

 Given that its revenues generated by fees, fines and civil penalties are not sufficient to meet expenditures over a 2-year period, the Board voted on February 24, 2022, to adopt the proposed graduated fee increases for application and biennial registration fees contained in the BFP's report.

Summary of Comments and the Board's Response

 Notice of the proposed rulemaking was published at 53 Pa.B. 4420 (August 5, 2023). The Board received comments from the Pennsylvania Chiropractic Association (PCA) and the American Chiropractic Association (ACA). The Board did not receive any comments from the Consumer Protection and Professional Licensure Committee (SCP/PLC) of the Senate or the Professional Licensure Committee (HPLC) of the House of Representatives. The Independent Regulatory Review Commission (IRRC) reviewed the proposed rulemaking and provided comments and recommendations as well.

 PCA, the ACA and IRRC commented on § 5.6(a), specifically the proposed fee for ''continuing education course approval'' which will incrementally increase the current fee of $30 per application to $100 for FY 2024-2025 and FY 2025-2026, to $110 for FY 2026-2027 and 2027-2028, and finally to $120 for FY 2028-2029 and thereafter. Each year, the Board receives approximately 600 applications for approval of continuing education courses (or about 1,200 biennially). Accordingly, the proposed fee increases will generate additional revenue as follows:

FY 2024-2025 through FY 2025-2026: The fee increase from $30 to $100 will generate an additional $84,000 in fees as compared to FY 2022-2023 through FY 2023-2024.

FY 2026-2027 through FY 2027-2028: The fee increase from $100 to $110 will generate an additional $12,000 in fees as compared to FY 2024-2025 through FY 2025-2026.

FY 2028-2029 through FY 2029-2030: The fee increase from $110 to $120 will generate an additional $12,000 in fees as compared to FY 2026-2027 through FY 2027-2028.

 PCA commented that the fee increase should be reflected in a ''tiered manner'' specific to ''per credit'' ranges, as opposed to ''per course'' (or ''per application''). IRRC requested that the Board address PCA's comment and explain why the Board's proposed fees are reasonable. For the following reasons, the Board is not amending § 5.6(a) in this final-form rulemaking: (1) this final-form rulemaking increases application fees to reflect updated costs of processing an application; and (2) to adopt PCA's proposed ''per credit'' approach would deviate from the Bureau's standard ''per application'' approach, which would require some applicants to pay more to submit the application than it would cost the Bureau to process the application. The cost to the Bureau to process an application for approval of a program of continuing chiropractic education is approximately the same regardless of the length of the course itself. It is Bureau policy that an applicant pay the approximate cost to the Bureau to process that specific application. It would be inequitable to charge an applicant (for example) $50 to process an application for a 1-hour course that costs the Bureau $100 to process; or to charge an applicant $150 to process an application for a 3-hour course that only costs the Bureau $100 to review.

 When the BFP determines that the Board's fees must be increased to cover its costs of operation, the BFP calculates the true cost to the Board/Bureau to process each application, and this calculation is provided to the Board in ''fee report forms'' generated by the BFP. With respect to the Board's fee for ''Application for Continuing Education Program,'' the BFP presented the Board with the following information and recommendation:

Fee Objective:

 The fee should (1) offset the identifiable costs incurred by the Board to process an application and (2) defray a portion of the Board's administrative overhead.

Fee-Related Activities and Costs:
Staff time-process application	(1 hour)	$46.24
Board Administrator review	(.25 hour)	$14.16
Board Member review	(.25 hour)	$26
Transaction fee		$2.50
Administrative Overhead:		$10
Total Estimated Cost:		$98.90
Proposed Fee:		$100

Analysis, Comment and Recommendation:

 It is recommended that a fee of $100 be established for processing an application for the Continuing Education Program.

 Accordingly, the Board has adopted the BFP's recommendation and increases its application fees to reflect the updated costs of processing these applications. Therefore, the Board is not amending § 5.6(a) in this final-form rulemaking.

 PCA also commented that ''90 days lead time to approve [continuing education applications] is far too long.'' Section 507(c) of the act (63 P.S. § 625.507(c)) provides that continuing education course providers submit to the Board, in writing, the information detailed in section 507(c)(1)—(3) at least 90 days prior to the date on which the program is scheduled to be presented. Accordingly, § 5.73(a) (relating to application for approval of continuing education courses; attendance certificates) provides that continuing education course providers submit applications for course approval with the required fee to the Board at least 90 days prior to the scheduled date of the program. Therefore, because the 90 days ''lead time'' is a statutory requirement, the Board cannot deviate from this requirement in its regulations.

 The ACA commented that the proposed fee for ''continuing education course approval'' will make the delivery of affordable, quality, approved continuing education credits to licensed Doctors of Chiropractic in the Commonwealth a cost-prohibitive undertaking. Additionally, the ACA proposed the Board consider the continuing education models of several other states, namely Colorado, Delaware and Illinois, described by the ACA as ''where the rules, regulations, or administrative codes of each state promulgate the standards of acceptable, board-approved continuing education courses or credits, the subject areas that should be covered, and the responsibility of the licensee to select courses that align with these standards.'' IRRC requested that the Board address the ACA's alternative approach and explain why the proposed fees are reasonable.

 In this Commonwealth, as a condition of biennial renewal, under section 507(a) of the act licensees must complete at least 24 hours of continuing chiropractic education within the immediately preceding 2-year period, and under section 507(b) of the act licensees may receive credit for only those hours of continuing chiropractic education in programs approved by the Board and for only those hours directed toward keeping the licensee apprised of advancements and new developments in chiropractic which build upon the basic courses required to practice chiropractic. However, while the Board is empowered to approve continuing education programs, section 507(c) and (d) of the act, specify:

(c) Application by sponsors.—Prior to receiving board approval for a program of continuing chiropractic education, a sponsor shall submit to the board, in writing, the following information at least 90 days prior to the date on which the program is scheduled to be presented:

 (1) Evidence that the sponsor's program would be directed toward keeping the licensee apprised of advancements and new developments in chiropractic which build upon the basic courses required to practice chiropractic and which are in the areas specified in subsection (b).

 (2) A detailed course outline or syllabus, including such items as methods of instruction and testing materials, if any.

 (3) A current curriculum vitae of each instructor, speaker or lecturer appearing in the program.

(d) Action on application.—The board shall notify each sponsor, in writing, of approval or disapproval of the application within 45 days of the receipt of the application. If an application is disapproved, the board shall detail the reasons for disapproval in order that the sponsor may cure any defect and submit an amended application in a timely manner.

 Accordingly, while the act affords the Board a great deal of latitude to determine what constitutes acceptable continuing education, the act also requires that sponsors of continuing education submit written applications for continuing education program approval to the Board at least 90 days prior to the date on which the program is scheduled to be presented.

 The relevant Colorado statute (C.R.S. § 12-215-113) directs the Colorado board to prepare an annual educational schedule of minimum postgraduate requirements, and the Colorado board's regulations (3 CCR 707-1:1.10(D)) state that a licensee is responsible for ensuring that continuing education courses comply with the requirements and section 12-215-113, C.R.S., which requires that each licensed chiropractor complete (biennially) 30 hours of scientific clinics, forums, or chiropractic educational study consisting of subjects basic to the field of the healing arts. Moreover, the regulations indicate that the Colorado board does not pre-approve continuing education courses, curriculum or programs. Accordingly, like section 507(b) of the act, the Colorado statute affords the Colorado board a great deal of latitude to determine what constitutes acceptable continuing education. However, unlike section 507(c) and (d) of the act which provide that sponsors of continuing education receive Board approval for each program of continuing chiropractic education, the Colorado board shifts the burden to the licensees to ensure that continuing education courses comply with the requirements.

 The relevant Delaware statute (24 Del.C. § 706(a)(10)) empowers the Delaware board to provide for the rules for continuing education, and the Delaware board's regulations require that licensees complete 24 hours of approved CE during each biennial licensing period (24 Del. Admin. Code 700-2.1), and that those continuing education courses contribute directly to the competency of a person licensed to practice as a chiropractor (24 Del. Admin. Code 700-2.1.8). Furthermore, the regulations indicate that courses co-sponsored by accredited chiropractic colleges, National or states organizations are presumptively approved (24 Del. Admin. Code 700-2.1.7). Accordingly, like section 507(b) of the act, the Delaware statute affords the Delaware board a great deal of latitude to determine what constitutes acceptable continuing education. However, unlike section 507(c) and (d) of the act which provide that sponsors of continuing education receive Board approval for each program of continuing chiropractic education, the Delaware board has ''pre-approved'' courses co-sponsored by accredited chiropractic colleges, National or states organizations.

 The relevant Illinois statute (225 ILCS 60/20) directs the Illinois board to promulgate rules of continuing education which require that licensees complete an average of 50 hours of continuing education per license year, and the statute requires that the rules assure that licensees are given the opportunity to participate in those programs sponsored by or through their professional associations or hospitals which are relevant to their practice. The relevant rule (68 Ill. Adm. Code 1285.110(b)) allows licensees to obtain continuing education credit hours by completing formal continuing education programs conducted or endorsed by hospitals, specialty societies, medical, chiropractic or osteopathic colleges, schools or education programs, or specialty boards and professional associations. Accordingly, like section 507(b) of the act, the Illinois statute affords the Illinois board a great deal of latitude to determine what constitutes acceptable continuing education. However, unlike section 507(c) and (d) of the act which provide that sponsors of continuing education receive Board approval for each program of continuing chiropractic education, the Illinois board is required to accept continuing education programs sponsored by or through professional associations or hospitals. The Illinois board expanded the list of ''pre-approved'' providers of continuing education through its regulations.

 Ultimately, to sum it all up, the Colorado board is empowered to shift the burden to licensees to ensure that continuing education courses comply with the requirements; the Board is not. The Delaware and Illinois boards are empowered to ''pre-approve'' sponsors or providers of continuing education programs; the Board is not.

 Due to the specific application requirements set forth in section 507(c) and (d) of the act, the Board is not empowered to adopt the continuing education models of Colorado, Delaware or Illinois. Consequently, the Board has not amended this final-form rulemaking and finds the fee to be reasonable given the costs incurred by the Board to process an application for continuing education program approval. It would be inequitable to expect licensees of the Board to underwrite the costs of approval of continuing education programs through their biennial registration fees. In addition, a $100 fee for approval of a continuing education course is comparable to the fees paid by other professions under the Bureau. For example, the State Board of Massage Therapy's regulation at § 20.3 (relating to fees) sets forth a $100 fee for approval of a continuing education program; the State Board of Podiatry's regulation at § 29.13 (relating to fees) sets forth a fee of $75 for applications for approval of educational conference; and the State Board of Veterinary Medicine's regulation at § 31.41 (relating to fees) is being amended to increase its fee for application for continuing education program approval from $35 to $108. As each of these boards also set their fees based on the cost of processing the application for approval, and these fees are fairly comparable, the Board finds the $100 fee to be reasonable.

Fiscal Impact and Paperwork Requirements

 The amendments will increase application and biennial registration fees on a graduated basis. Applicants, licensees and registrants will be required to comply with this final-form rulemaking. The fees may be paid by applicants, licensees or registrants or may be paid by their employers, should their employers choose to pay these fees. This final-form rulemaking should have no other fiscal impact on the private sector, the general public or political subdivisions of the Commonwealth.

 Approximately 916 applicants will be impacted by the increased application fees. Specifically, the number of applicants affected are as follows: 175 applications for licensure by exam; 15 applications for licensure by reciprocity; 126 applications for certification to use adjunctive procedure; and 600 applications for continuing education course approvals.

 Based upon the graduated application fee increases, the total economic impact is as follows:

FYs 2024-2025 and 2025-2026: $134,710
FYs 2026-2027 and 2027-2028:  $18,440
FYs 2028-2029 and 2029-2030:  $19,102
            Total: $172,252

 Licensed chiropractors will be impacted by the increased biennial registration fees. Based upon the above graduated increases, the economic impact is as follows:

FYs 2024-2025 and 2025-2026: $57,150
FYs 2026-2027 and 2027-2028: $60,960
FYs 2028-2029 and 2029-2030: $64,770
            Total: $182,880

 Thus, the total economic impact to applicants, licensees, registrants or employers (if employers choose to pay application or biennial registration fees) is $355,132. This amount reflects the economic impact that will occur as a result of the fee increases between FY 2024-2025 and FY 2029-2030.

 This final-form rulemaking will require the Board revise certain applications and biennial registration forms to reflect the new fees; however, the amendments will not create additional paperwork for the regulated community or for the private sector.

Sunset Date

 The Board continuously monitors the effectiveness of its regulations. Therefore, no sunset date has been assigned. Additionally, the BFP provides the Board with an annual report detailing the Board's financial condition. In this way, the Board continuously monitors the adequacy of its fee schedule.

Regulatory Review

 Under section 5(a) of the Regulatory Review Act (71 P.S. § 745.5(a)), on July 25, 2023, the Board submitted a copy of the notice of proposed rulemaking, published at 53 Pa.B. 4420 and a copy of a Regulatory Analysis Form to IRRC and to the chairperson of the SCP/PLC and chairperson of the HPLC. A copy of this material is available to the public upon request.

 Under section 5(c) of the Regulatory Review Act (71 P.S. § 745.5(c)), the Board shall submit to IRRC, the SCP/PLC and the HPLC, copies of comments received as well as other documents when requested. In preparing this final-form regulation, the Board has considered all comments from IRRC, the SCP/PLC, the HPLC and the public.

 Under section 5.1(a) of the Regulatory Review Act (71 P.S. § 745.5a(a)), on March 15, 2024, the Board delivered this final-form rulemaking to IRRC, the SCP/PLC and the HPLC. Under section 5.1(j.2) of the Regulation Review Act, the final-form rulemaking was deemed approved by the SCP/PLC and the HPLC on April 17, 2024. Under section 5.1(e) of the Regulatory Review Act, IRRC met on April 18, 2024, and approved the final-form rulemaking.

Additional Information

 Additional information may be obtained by writing to Shakeena Chappelle, Board Administrator, State Board of Chiropractic, P.O. Box 2649, Harrisburg, PA 17105-2649, ST-CHIROPRACTIC@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) (45 P.S. §§ 1201 and 1202), referred to as the Commonwealth Documents Law, and the 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 and all comments received were considered in drafting this final-form rulemaking.

 (3) The amendments to this final-form rulemaking do not enlarge the original purpose of the proposed rulemaking published at 53 Pa.B. 4420.

 (4) This final-form rulemaking is necessary and appropriate for the administration of the act.

Order

 The Board, therefore, orders that:

 (a) The regulations of the Board, 49 Pa. Code Chapter 5, are amended by amending §§ 5.6, 5.15 and 5.16 to read as set forth in Annex A, with ellipses referring to the existing text of the regulations.

 (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 SCP/PLC and the HPLC as required by law.

 (d) The Board shall certify this final-form rulemaking and deposit it with the Legislative Reference Bureau as required by law.

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

WILLIAM AUKERMAN, DC, 
Chairperson, State Board of Chiropractic

ARION R. CLAGGETT, 
Acting Commissioner, Bureau of Professional and Occupational Affairs

 (Editor's Note: See 54 Pa.B. 2469 (May 4, 2024) for IRRC's approval order.)

 Fiscal Note: Fiscal Note 16A-4335 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 5. STATE BOARD OF CHIROPRACTIC

Subchapter A. GENERAL PROVISIONS

§ 5.6. Fees.

 (a) An applicant for a license, certificate, registration or service shall pay the following fees at the time of application:

	Effective June 8, 2024	Effective   July 1, 2026	Effective   July 1, 2028
Licensure by examination	$105	$115	$126
Licensure by reciprocity	$150	$164	$180
Limited license	$30	$30	$30
Adjunctive procedures certification	$105	$115	$126
Certification of grades or licensure	$25	$25	$25
Continuing education course approval	$100	$110	$120
Licensure restoration	$25	$25	$25

 (b) An applicant for biennial registration shall pay the following fees:

	September 2, 2024— September 1, 2026,   Biennial Registration Fee	September 2, 2026— September 1, 2028,   Biennial Registration Fee	September. 2, 2028— September 1, 2030, Biennial Registration Fee and thereafter
Chiropractor	$225	$241	$258

Subchapter B. LICENSURE, CERTIFICATION, EXAMINATION AND REGISTRATION PROVISIONS

§ 5.15. Licensure examinations.

 (a) To qualify for licensure by examination, an applicant shall successfully complete the following examinations:

 (1) Parts I, II, III and IV of the National Board Examination.

 (2) [Reserved].

 (b) The applicant shall apply to the NBCE for admission to the National Board Examinations and pay the required fees at the direction of the NBCE.

*  *  *  *  *

 (d) Passing scores on the National Board Examinations shall be established by the NBCE for each administration of the National Board Examinations in accordance with section 502(e) of the act (63 P.S. § 625.502(e)). A passing score on Part IV of the National Board Examination obtained at any time since Part IV has been offered by the NBCE will satisfy the Part IV National Board Examination requirement under § 5.12(a) (relating to licensure by examination).

 (e) [Reserved].

§ 5.16. Failure on examination; reexamination.

 (a) An applicant who fails one or more of the National Board Examinations is eligible for reexamination in accordance with the rules and regulations of the NBCE.

 (b) [Reserved].

[Pa.B. Doc. No. 24-790. Filed for public inspection June 7, 2024, 9:00 a.m.]

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