NOTICES
INDEPENDENT REGULATORY REVIEW COMMISSION
Action Taken by the Commission
[40 Pa.B. 5031]
[Saturday, August 28, 2010]The Independent Regulatory Review Commission met publicly at 10 a.m., Thursday, August 5, 2010, and announced the following:
Action Taken—Regulations Disapproved:
Bureau of Professional and Occupational Affairs #16A-47: Schedule of Civil Penalties—Funeral Directors and Funeral Establishments (amends 49 Pa. Code Chapter 13)
State Board of Funeral Directors #16A-4818: Continuing Education Enforcement (amends 49 Pa. Code § 43b.6)
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Disapproval Order Public Meeting held
August 5, 2010Commissioners Voting: Arthur Coccodrilli, Chairperson; George D. Bedwick, Vice Chairperson; S. David Fineman, Esq.; Silvan B. Lutkewitte, III; John F. Mizner, Esq., by Phone
Bureau of Professional and Occupational Affairs— Schedule of Civil Penalties—Funeral Directors and Funeral Establishments; Regulation No. 16A-47 (#2761) On April 22, 2009, the Independent Regulatory Review Commission (Commission) received this proposed regulation from the Bureau of Professional and Occupational Affairs (Bureau). This rulemaking amends 49 Pa. Code § 43b.6. The proposed regulation was published in the May 2, 2009 Pennsylvania Bulletin with a 30-day public comment period. The final-form regulation was submitted to the Commission on June 25, 2010.
This final regulation would establish a civil penalty schedule for violations of the continuing education requirements of the State Board of Funeral Directors (Board). This regulation is the companion piece to Regulation #16A-4818 (IRRC #2760) from the Board entitled: ''Continuing Education Enforcement.''
Thomas A. Blackburn, Regulatory Unit Counsel for the Department of State, appeared at the public meeting on August 5, 2010. Attorney Blackburn represented that he was authorized to request, on behalf of the Bureau, that the Commission disapprove this final-form regulation, given that the companion Regulation #16A-4818 (IRRC #2760) had been disapproved at the same public meeting. Without support from the promulgating Bureau, this regulation does not meet the reasonableness criterion set forth in the Regulatory Review Act and is not in the public interest. 71 P. S. § 745.5b(b)(3). Therefore, in response to the Bureau's request, we disapprove this regulation.
By Order of the Commission:
The regulation #16A-47 (IRRC #2761) from the Bureau of Professional Occupational Affairs: Schedule of Civil Penalties—Funeral Directors & Funeral Establishments was disapproved on August 5, 2010.
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Disapproval Order Public Meeting held
August 5, 2010Commissioners Voting: Arthur Coccodrilli, Chairperson; George D. Bedwick, Vice Chairperson; S. David Fineman, Esq.; Silvan B. Lutkewitte, III; John F. Mizner, Esq. by Phone
State Board of Funeral Directors—Continuing Education Enforcement; Regulation No. 16A-4818 (#2760) On April 22, 2009, the Independent Regulatory Review Commission (Commission) received this proposed regulation from the State Board of Funeral Directors (Board). This rulemaking amends 49 Pa. Code Chapter 13. The proposed regulation was published in the May 2, 2009 Pennsylvania Bulletin with a 30-day public comment period. The final-form regulation was submitted to the Commission on June 25, 2010.
This rulemaking is intended to clarify the consequences of failing to comply with the continuing education provisions in the Funeral Director Law (63 P. S. § 479.10(b)) and the Board's regulations (49 Pa. Code §§ 13.401—13.406). Both require a licensee to complete six hours of continuing education credits each biennium in order to qualify for license renewal. Under the amendments in this rulemaking, a licensee who has not completed the amount of continuing education credits may renew, subject to being issued a citation, paying a fine and making up the continuing education credits within six months.
We find that the Board does not have the statutory authority to renew a license for an applicant who has not completed the statutorily mandated six hours of continuing education during the prior two-year license period. As explained below, this regulation does not meet the Regulatory Review Act criterion of statutory authority to promulgate the regulation. 71 P. S. § 745.5b.
In our comments issued July 1, 2009, on the proposed regulation, we stated:
. . . the Board should explain the status of a license between the end of a biennial period when a license would expire and the point in time a licensee provides satisfactory proof of attendance at continuing education courses.The Board responded in the final regulation's Preamble:
Upon renewal of the license, the licensure status is the same as if the licensee had completed the entire continuing education requirement in a timely fashion. Only if the Board later takes disciplinary action, such as if the Board then suspends a license where the licensee still has not completed the required continuing education, would the licensure status change.The Board's response indicated that the intent of the amended regulatory language, which would be 49 Pa. Code §§ 13.231(a) and 13.401(d), is to allow a renewal of a license when a licensee failed to attend the required six hours of mandatory continuing education during the license period.
Continuing education relating to license renewal is addressed in 63 P. S. § 479.10(b)(1) which states:
The Board shall adopt, promulgate and enforce rules and regulations consistent with provisions of this act establishing requirements of continuing education to be met by individuals licensed under this act as a condition for renewal of their licenses. . . . (Emphasis added.)The only exceptions to the continuing education mandate in the statute are for initial licensure and waivers for ''serious illness, military service or other demonstrated hardship'' on a case by case basis. When a licensee does not meet either of these conditions, the applicant, ''as a condition of renewal of their license,'' is required to have attended ''six (6) hours of mandatory continuing education during each two-year license period.'' 63 P. S. §§ 479.10(b)(1) to (4).
We have determined this regulation is not consistent with the statutory authority of the State Board of Funeral Directors (63 P. S. § 479.10(b)) and the intention of the General Assembly. Therefore, we find promulgation of this regulation is not in the public interest.
By Order of the Commission:
The regulation #16A-4818 (IRRC #2760) from the State Board of Funeral Directors: Continuing Education Enforcement was disapproved on August 5, 2010.
ARTHUR COCCODRILLI,
Chairperson
[Pa.B. Doc. No. 10-1611. Filed for public inspection August 27, 2010, 9:00 a.m.]
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