PROPOSED RULEMAKING

BUREAU OF PROFESSIONAL AND OCCUPATIONAL AFFAIRS

[ 49 PA. CODE CH. 43b ]

Schedule of Civil Penalties—Veterinarians and Veterinary Technicians

[40 Pa.B. 2423]
[Saturday, May 8, 2010]

 The Commissioner of Professional and Occupational Affairs (Commissioner) proposes to amend Chapter 43b (relating to Commission of Professional and Occupational Affairs) by rescinding § 43b.21 (relating to schedule of civil penalties—veterinarians and veterinary technicians—statement of policy) and replacing it with § 43b.21a (relating to schedule of civil penalties—veterinarians and certified veterinary technicians), to read as set forth in Annex A.

Effective Date

 The amendments will be effective upon publication of final-form rulemaking in the Pennsylvania Bulletin.

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 and commissions in the Bureau of Professional and Occupational Affairs (Bureau), to promulgate regulations setting forth a schedule of civil penalties, guidelines for their imposition, and procedures for appeal for: (1) operating without a current and valid license, registration, certificate or permit; and (2) violating an act or regulation of a licensing board or commission relating to the conduct or operation of a business or facility licensed by the board or commission.

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, licensees who receive an Act 48 citation retain their due process right of appeal prior to the imposition of discipline. 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, with approximately 30% of all sanctions imposed by the Boards and Commissions being accomplished through the Act 48 citation process.

 The Commissioner had previously published a policy statement at 37 Pa.B. 2608 (June 9, 2007) establishing Act 48 civil penalties for veterinarians and certified veterinary technicians (CVTs) and now proposes to codify and amend the schedule of civil penalties in this proposed rulemaking. Proposed § 43b.21a sets forth the complete civil penalty schedule for the State Board of Veterinary Medicine (Board). The civil penalties proposed in § 43b.21a were drafted following discussions between the Board and a representative of the Commissioner at regularly scheduled public meetings.

Description of the Proposed Amendments

 The proposal would codify and amend the schedule of civil penalties that the Commissioner previously published and add new violations to the Board's Act 48 schedule. The new violations include failure to complete mandatory continuing education, failure to make up a deficiency in continuing education within 6 months of receiving a citation, failure to properly label drugs dispensed to clients and failure to dispense drugs in containers as required by Board regulations.

 The Commissioner proposes amendments to alter the time periods and penalties associated with practicing on an expired license. Practice on a lapsed license for up to 6 months would still result in a warning. The second time period, previously 6—24 months, was changed to 7—12 months; the civil penalty would remain the same. The proposal would alter the third time period, previously 24—48 months, to 13—24 months; and would provide for a $500 civil penalty for CVTs and a $750 civil penalty for veterinarians. The Commissioner would add another time period, 25—30 months; with a $750 civil penalty for certified veterinary technicians and a $1,000 civil penalty for veterinarians. The shortened time periods and increased civil penalties reflect the determination that an enhanced penalty schedule is required to ensure compliance and protect the public.

 The Commissioner proposes to add two new offenses to the Act 48 offenses that may be disposed of by issuance of a citation and civil penalty. The two new offenses involve violating a regulation related to the conduct or operation of a veterinary business. Because many drugs prescribed by veterinarians are exclusively animal drugs that are not stocked in commercial human pharmacies, veterinarians operate in-house pharmacies as part of their businesses. Section 31.21 (relating to Rules of Professional Conduct for Veterinarians), Principle 8(c) and (d), of the Board's regulations require veterinarians to properly label prescription drugs dispensed to clients and to dispense drugs in child resistant or original manufacturer's packaging. The Commissioner proposes civil penalties of $500 for the first offense and $1,000 for the second offense for violating either of these regulatory provisions. These provisions were modeled after provisions in the Act 48 schedule in § 43b.7 (relating to schedule of civil penalties—pharmacists and pharmacies), which provides for civil penalties for violations under § 27.18 of the State Board of Pharmacy's regulations (relating to standards of practice). Section 43b.7 provides for Act 48 civil penalties for dispensing drugs in ''unsuitable containers'' and for ''lack of required information on container labels.''

 The Commissioner also proposes a schedule of civil penalties for the failure to complete mandatory continuing education by veterinarians and CVTs during the biennial renewal period preceding license renewal. The proposal calls for a $25 per credit hour civil penalty for CVTs for the first offense and a $150 per credit hour civil penalty for veterinarians for the first offense; however, these civil penalties would only apply if the licensee made up the hours of continuing education that were deficient within 6 months of the end of the biennial renewal period. The biennial renewal period for veterinarians and certified veterinary technicians ends on November 30 of even-numbered years. The proposal would require veterinarians and CVTs to make up the number of deficient hours within 6 months or face formal prosecution. The $150 proposed civil penalty per credit hour for veterinarians represents a significant increase over the civil penalty of $50 per credit hour that was adopted by the Board in 2005. Because veterinary medicine is constantly evolving, with new treatments, new surgical techniques, new drugs, and new research, participation in continuing education is vital to the continued competence of veterinarians. The amended civil penalty demonstrates the commitment of the Commissioner and the Board to ensuring that licensees are able to provide high quality care to animals and adequately meet public health needs for veterinary medicine in this Commonwealth.

Fiscal Impact and Paperwork Requirements

 The proposed rulemaking would have a positive fiscal impact on the Commonwealth or its political subdivisions, and would reduce the paperwork requirements of both the Commonwealth and the regulated community by eliminating the need for orders to show cause, answers, consent agreements and adjudications/orders for those violations subject to the Act 48 citation process.

Sunset Date

 Professional licensure statutes require each bureau and commission to be self-supporting; therefore, bureaus and commissions continually monitor the cost effectiveness of regulations affecting their operations. As a result, no sunset date has been assigned.

Regulatory Review

 Under section 5(a) of the Regulatory Review Act (71 P. S. § 745.5(a)), on April 27, 2010, the Commissioner submitted a copy of this proposed rulemaking and a copy of a Regulatory Analysis Form to the Independent Regulatory Review Commission (IRRC) and to the Senate Consumer Protection and Professional Licensure Committee and the House Professional Licensure Committee. A copy of this material is available to the public upon request.

 Under section 5(g) of the Regulatory Review Act, IRRC may convey any comments, recommendations or objections to the proposed rulemaking within 30 days of the close of the public comment period. The comments, recommendations or objections shall specify the regulatory review criteria that have not been met. The Regulatory Review Act specifies detailed procedures for review, prior to final publication of the rulemaking, by the Commissioner, the General Assembly and the Governor of comments, recommendations or objections raised.

Public Comment

 Interested persons are invited to submit written comments, suggestions or objections regarding this proposed rulemaking to Teresa Lazo, Counsel, State Board of Veterinary Medicine, P. O. Box 2649, Harrisburg, PA 17105-2649, within 30 days following publication of this proposed rulemaking in the Pennsylvania Bulletin.

BASIL L. MERENDA, 
Commissioner

 Fiscal Note: 16A-51. 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.21. [Schedule of civil penalties—veterinarians and veterinary technicians—statement of policy] (Reserved).

[STATE BOARD OF VETERINARY MEDICINE

Violation under 63 P. S.	Violation under 49 Pa. Code Chapter 31	Title/Description	Civil Penalty
Section 485.17	N/A	Failure to display current license.	Each offense—$100
Section 485.21(1)	§ 31.21 Principle 5(c)	Improper advertising of emergency services.	First offense—$250 Second offense—$1,000 Subsequent offense—formal action
Sections 485.9(a) and 485.21(1)	§ 31.13	Practicing veterinary medicine on an expired license.	0—6 months—warning 6—24 months—$500 24—48 months—$1,000 More than 48 months—formal  prosecution
Section 485.21(1)	§ 31.36	Practicing as a veterinary technician on an expired certificate.	0—6 months—warning 6—24 months—$250 24—48 months—$500 More than 48 months—formal  action]

§ 43b.21a. Schedule of civil penalties—veterinarians and certified veterinary technicians.

STATE BOARD OF VETERINARY MEDICINE

Violation under 63 P. S.	Violation under 49 Pa. Code Chapter 31	Title/Description	Civil Penalty
Sections 485.17 and 485.21(3)	N/A	Failure to display current license.	Each offense—$100
Section 485.21(1)	§ 31.21 Principle 5(c)	Improper advertising of emergency services.	First offense—$250 Second offense—$1,000 Subsequent offense—formal action
Sections 485.9(a) and 485.21(1)	§ 31.13	Practicing veterinary medicine on an expired license.	0—6 months—warning 7—12 months—$500 13—24 months—$750 25—30 months—$1,000 More than 30 months—formal  action
Section 485.21(1)	§ 31.36	Practicing veterinary technology on an expired certificate.	0—6 months—warning 7—12 months—$250 13—24 months—$500 25—30 months $750 More than 30 months—formal  action
Section 485.18	§ 31.15	Failure of veterinarian to complete required continuing education during the preceding biennial renewal period, which is corrected within 6 months.	First offense—$150 per credit hour Second offense—formal action
Section 485.18	§ 31.36(a)	Failure of certified veterinary technician to complete required continuing education during the preceding biennial renewal period, which is corrected within 6 months.	First offense—$25 per credit hour Second offense—formal action
Section 485.21(1)	§ 31.21 Principle 8(d)	Improper labeling of dispensed drugs.	First offense—$500 Second offense—$1,000 Subsequent offense—formal action
Section 485.21(1)	§ 31.21 Principle 8(c)	Improper packaging of dispensed drugs.	First offense—$500 Second offense—$1,000 Subsequent offense—formal action

[Pa.B. Doc. No. 10-827. Filed for public inspection May 7, 2010, 9:00 a.m.]

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