PROPOSED RULEMAKING

BUREAU OF PROFESSIONAL AND OCCUPATIONAL AFFAIRS

[ 49 PA. CODE CH. 43b ]

Schedule of Civil Penalties—Social Workers, Marriage and Family Therapists and Professional Counselors

[42 Pa.B. 5742]
[Saturday, September 8, 2012]

 The Commissioner of Professional and Occupational Affairs (Commissioner) proposes to add § 43b.24 (relating to schedule of civil penalties—social workers, marriage and family therapists and professional counselors) to read as set forth in Annex A.

Effective Date

 The proposed civil penalties will be effective upon final-form 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 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 regarding the conduct or operation of a business or facility licensed by a 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 Act 48 citations 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. Act 48 citations have become an important part of the Bureau's enforcement efforts.

 Upon consultation with a representative of the Commissioner, the State Board of Social Workers, Marriage and Family Therapists and Professional Counselors (Board) determined that it should utilize the Act 48 citation process to decrease costs to its licensees and more efficiently conduct its duties.

Description of the Proposed Amendments

 The proposed rulemaking would add § 43b.24 to add a schedule of civil penalties for three general categories of matters that routinely arise before the Board: cases involving unlicensed individuals holding out as licensed; lapsed license cases; and cases involving violations of the continuing education requirements.

 First, the Commissioner proposes to establish a schedule of civil penalties for unlicensed individuals who hold themselves out as licensed or who use letters, words or symbols indicating or tending to indicate licensure without first having obtained a license from the Board. For this offense, the Commissioner is proposing a civil penalty of $500 for first offenses. For second and subsequent offenses, formal administrative action would be required.

 Additionally, section 20(a.1) of the Social Workers, Marriage and Family Therapists and Professional Counselors Act (act) (63 P. S. § 1920(a.1)) makes it unlawful for an individual to hold oneself out as a social worker, use the title ''social worker'' or use the abbreviation ''S.W.'' unless the individual either holds a current license or has received a bachelor's, master's or doctoral degree from an accredited school or program of social work or social welfare. Accordingly, the Commissioner is proposing a similar schedule of civil penalties for individuals who violate this section of the act. For first offenses, the penalty would be $500. Second and subsequent offenses would be subject to formal administrative action.

 With regard to lapsed licenses, the Commissioner proposes a civil penalty of $100 per month, up to the maximum $1,000, for licensees who continue to hold themselves out as licensed social workers, licensed clinical social workers, licensed marriage and family therapists or licensed professional counselors, without a valid, unexpired license for 12 months or less. Second and subsequent offenses, or offenses continuing for over 12 months, would be subject to formal administrative action.

 Finally, the Commissioner is proposing a schedule of civil penalties for violations of the Board's continuing education regulations. Failure of a licensed social worker, licensed clinical social worker, licensed marriage and family therapist, or licensed professional counselor to complete 30 clock hours of continuing education in acceptable courses offered by approved providers during the preceding biennium, including at least 3 clock hours in ethical issues would subject the licensee to a warning letter for less than 3 hours deficient, and a civil penalty of $100 for each hour up to the maximum $1,000, for 3 to 10 hours deficient. Deficiencies of more than 10 hours and second and subsequent offenses would result in formal administrative action. Notwithstanding disciplinary action taken for a continuing education violation, whether resulting in the issuance of a warning letter, issuance of a citation, or the imposition of formal discipline, licensees will be required, through a companion rulemaking of the Board, to make up deficiencies within 6 months.

Fiscal Impact and Paperwork Requirements

 The proposed rulemaking would not have adverse 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 board and commission to be self-supporting. Therefore, boards and commissions continually monitor the cost effectiveness of regulations affecting operations. 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 August, 28, 2012, 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 the Chairpersons of the House Professional Licensure Committee and the Senate Consumer Protection and 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 comments, recommendations or objections to the proposed rulemaking within 30 days of the close of the public comment period. The comments, recommendations or objections must specify the regulatory review criteria which 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 Cynthia K. Montgomery, Regulatory Counsel, Department of State, Bureau of Professional and Occupational Affairs, P. O. Box 2649, Harrisburg, PA 17105-2649 within 30 days of publication of this proposed rulemaking in the Pennsylvania Bulletin. Reference No. 16A-6917, Schedule of Civil Penalties—Social Workers, Marriage and Family Therapists and Professional Counselors, when submitting comments.

KATHERINE TRUE, 
Commissioner

 (Editor's Note: See 42 Pa.B. 5744 (September 8, 2012) for a proposed rulemaking by the Board relating to this proposed rulemaking.)

 Fiscal Note: 16A-6917. 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.24. Schedule of civil penalties—social workers, marriage and family therapists and professional counselors.

STATE BOARD OF SOCIAL WORKERS, MARRIAGE AND FAMILY THERAPISTS AND PROFESSIONAL COUNSELORS

Violation under 63 P. S.	Title/Description	Penalties
Sections 1904 and 1916	Holding oneself out as a licensed social worker, using the letters L.S.W. in connection with one's name or using words or symbols indicating or tending to indicate that one is a licensed social worker without first having obtained a license from the Board	1st offense—$500 2nd and subsequent offenses—formal action
Sections 1904 and 1916.1	Holding oneself out as a licensed clinical social worker, using the letters L.C.S.W. in connection with one's name or using words or symbols indicating or tending to indicate that one is a licensed clinical social worker without first having obtained a license from the Board	1st offense—$500 2nd and subsequent offenses—formal action
Sections 1904 and 1916.2	Holding oneself out as a licensed marriage and family therapist, using the letters L.M.F.T. in connection with one's name or using words or symbols indicating or tending to indicate that one is a licensed marriage and family therapist without first having obtained a license from the Board	1st offense—$500 2nd and subsequent offenses—formal action
Sections 1904 and 1916.3	Holding oneself out as a licensed professional counselor, using the letters L.P.C. in connection with one's name or using words or symbols indicating or tending to indicate that one is a licensed professional counselor without first having obtained a license from the Board	1st offense—$500 2nd and subsequent offenses—formal action
Section 1920(a)	Holding oneself out as a licensed social worker, licensed clinical social worker, licensed marriage and family therapist or licensed professional counselor on a lapsed or expired license	1st offense—0 to 12 months—$100 per month up to $1,000; over 12 months—formal action 2nd and subsequent offense—formal action
Section 1920(a.1)	Holding oneself out as a social worker, using the title of ''social worker'' or using the abbreviation ''S.W.'' without meeting the definition of ''social worker'' in 63 P. S. § 1903	1st offense—$500 2nd and subsequent offenses—formal action

Violation under 49 Pa. Code	Title/Description	Penalties
Section 47.32(a)	Failure of a licensed social worker to complete 30 clock hours of continuing education in acceptable courses and programs in social work offered by approved providers during the preceding biennium as a condition of renewal, including at least 3 clock hours in ethical issues	1st offense—less than 3 hours deficient—warning; 3 to 10 hours deficient—$100 per hour; over 10 hours deficient—formal action 2nd and subsequent offenses—formal action
Section 47.32(b)	Failure of a licensed clinical social worker to complete 30 clock hours of continuing education in acceptable courses and programs in social work offered by approved providers during the preceding biennium as a condition of renewal, including at least 3 clock hours in ethical issues	1st offense—less than 3 hours deficient—warning; 3 to 10 hours deficient—$100 per hour; over 10 hours deficient—formal action 2nd and subsequent offenses—formal action
Section 48.32	Failure of a licensed marriage and family therapist to complete 30 clock hours of continuing education in acceptable courses and programs offered by approved providers during the preceding biennium as a condition of renewal, including at least 3 clock hours in ethical issues	1st offense—less than 3 hours deficient—warning; 3 to 10 hours deficient—$100 per hour; over 10 hours deficient—formal action 2nd and subsequent offenses—formal action
Section 49.32	Failure of a licensed professional counselor to complete 30 clock hours of continuing education in acceptable courses and programs offered by approved providers during the preceding biennium as a condition of renewal, including at least 3 clock hours in ethical issues	1st offense—less than 3 hours deficient—warning; 3 to 10 hours deficient—$100 per hour; over 10 hours deficient—formal action 2nd and subsequent offenses—formal action

[Pa.B. Doc. No. 12-1733. Filed for public inspection September 7, 2012, 9:00 a.m.]

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