PROPOSED RULEMAKING
STATE BOARD OF PHYSICAL THERAPY
[ 49 PA. CODE CH. 40 ]
Continuing Education Enforcement
[44 Pa.B. 7178]
[Saturday, November 15, 2014]The State Board of Physical Therapy (Board) proposes to amend §§ 40.67 and 40.192 (relating to continuing education for licensed physical therapist; and continuing education for certified physical therapist assistant) to read as set forth in Annex A.
Effective Date
The proposed rulemaking will be effective upon final-form publication in the Pennsylvania Bulletin.
Statutory Authority
The proposed rulemaking is authorized under section 3(a) of the Physical Therapy Practice Act (act) (63 P. S. § 1303(a)), which provides the Board's general authority to promulgate regulations not inconsistent with law as it may deem necessary for the performance of its duties and the proper administration of the act.
Background and Need for the Proposed Rulemaking
Section 7.2 of the act (63 P. S. § 1307.2) requires each licensed physical therapist to complete at least 30 hours of continuing physical therapy education during each biennial renewal period. Section 9.1(j) of the act (63 P. S. § 1309.1(j)) requires each certified physical therapist assistant to complete at least 30 hours of continuing physical therapy education during each biennial renewal period. The Board incorporated these requirements into §§ 40.67(a) and 40.192(a), respectively. Under §§ 40.19(c)(5) and 40.191(c)(5) (relating to renewal of physical therapist license; and renewal of certification), to renew a license or certificate, a licensed physical therapist or certified physical therapist assistant is required to verify that the licensee or certificate holder has completed the required amount of continuing education. Moreover, the Board will not renew the license of a physical therapist or the certificate of a physical therapist assistant if the individual cannot verify that the continuing education required during the immediately preceding biennium has been completed. Although these requirements are conditions for renewal, a licensee or certificate holder may mistakenly verify that the licensee has satisfied the continuing education requirement. Upon audit, however, it is discovered that the licensee or certificate holder has not completed the requirements.
Under section 11(a)(6) of the act (63 P. S. § 1311(a)(6)), the Board may suspend or revoke a license or certificate for unprofessional conduct. Under section 12(c) of the act (63 P. S. § 1312(c)), the Board may levy a civil penalty against a licensee or certificate holder who has violated the act. Under § 40.52(11) (relating to unprofessional conduct; physical therapists), the Board has defined unprofessional conduct to include violating a provision of the act or the Board's regulations that establish a standard of conduct. Disciplinary actions for failing to complete the continuing education requirement in a timely manner invariably result in the licensee being required to pay a civil penalty proportionate to the amount of deficiency and to make up the deficiency promptly. Accordingly, the Board proposes to utilize the more streamlined citation procedures under section 5(a) of the act of July 2, 1993 (P. L. 345, No. 48) (Act 48) (63 P. S. § 2205(a)), which provides that the Commissioner of Professional and Occupational Affairs (Commissioner), after consultation with licensing boards in the Bureau of Professional and Occupational Affairs, may promulgate a schedule of civil penalties for violations of the acts or regulations of these licensing boards and agents of the Board may issue citations for violations covered by the schedule of civil penalties. Accordingly, the Commissioner has separately proposed using the Act 48 citation system to levy the civil penalty. To obtain greater compliance with the underlying continuing education requirements, this rulemaking proposes to amend the Board's regulations to address curing the deficiency.
While the Commonwealth's prosecuting attorneys may utilize this ''citation and make-up'' system as one tool in addressing a licensee or certificate holder who has not completed the required continuing education, they retain the discretion to also file formal action under section 11(a)(2) of the act, which provides that the Board may suspend or revoke a license or certificate of an individual who has attempted to or obtained a license or certificate by fraud or misrepresentation, if the licensee/certificate holder, for example, knows that the required continuing education has not been completed, but verifies on the renewal application that the licensee/certificate holder has completed the required amount of continuing education.
Description of the Proposed Rulemaking
The proposed rulemaking would add § 40.67(f). This proposed subsection would subject a licensee who failed to complete the minimum required amount of continuing education during the applicable biennial renewal period to disciplinary action in the form of a civil penalty under section 12(c) of the act in accordance with the schedule of civil penalties in proposed § 43b.25 (relating to schedule of civil penalties—physical therapists and physical therapist assistants), being promulgated concurrently by the Commissioner. It would also require the licensee to make up the deficiency and provide proof to the Board within 6 months of the issuance of the Act 48 citation. If the licensee does not do so, the licensee will be subject to disciplinary action, including the suspension of the license under section 11(a)(6) of the act for committing unprofessional conduct. Because mandatory continuing education is generally considered to be a condition of renewal, proposed § 40.67(f) would exempt for this disciplinary proceeding a licensee who permitted the license to expire at the conclusion of a renewal period during which the licensee did not complete the required amount of continuing education and did not practice the profession until reactivating the license under § 40.20(c) (relating to inactive status of physical therapist license) upon a demonstration that the licensee subsequently completed the required deficient continuing education.
The proposed rulemaking would also add § 40.192(f) with similar provisions for certified physical therapist assistants. A certified physical therapist assistant whodoes not make up the deficiency would be subject to disciplinary action under § 40.181(a)(6) (relating to refusal, suspension or revocation of certification) for committing unprofessional conduct, as authorized under section 9.1(f) of the act. A physical therapist assistant who permitted the certificate to expire and did not provide services until reactivating under § 40.191(g) upon a demonstration that the certificate holder subsequently completed the required deficient continuing education would be exempted from this disciplinary process.
Fiscal Impact and Paperwork Requirements
The proposed rulemaking will not have adverse fiscal impact on the Commonwealth or its political subdivisions. The proposed rulemaking will not impose additional paperwork requirements upon the Commonwealth, political subdivisions or the private sector.
Sunset Date
The Board continuously monitors the effectiveness of its regulations. Therefore, 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 October 31, 2014, the Board 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 Board, 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 Regulatory Counsel, Department of State, P. O. Box 2649, Harrisburg, PA 17105-2649, RA-STRegulatoryCounsel@pa.gov within 30 days following publication of this proposed rulemaking in the Pennsylvania Bulletin. Reference No. 16A-6515 (Continuing education enforcement) when submitting comments.
SUSAN L. WHITNEY, PhD, PT, NCS, ATC,
Chairperson(Editor's Note: See 44 Pa.B. 7173 (November 15, 2014) for a proposed rulemaking by the Bureau of Professional and Occupational Affairs relating to this proposed rulemaking. Section 43b.25 will be adopted on or before the date of final adoption of this proposed rulemaking.)
Fiscal Note: 16A-6515. 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 40. STATE BOARD OF PHYSICAL THERAPY
Subchapter A. PHYSICAL THERAPISTS
CONTINUING EDUCATION § 40.67. Continuing education for licensed physical therapist.
* * * * * (e) Authoring publications. A licensed physical therapist may earn continuing education credit for authoring publications as provided in this subsection.
* * * * * (4) Credit for authoring a publication will be awarded only for the biennial renewal period in which it was published.
(f) Disciplinary action authorized. Unless otherwise excused by the act or this chapter, failure to complete the minimum required amount of continuing education during the applicable renewal period will subject the licensee to discipline under section 12(c) of the act (63 P. S. § 1312(c)) in accordance with the schedule of civil penalties in § 43b.25 (relating to schedule of civil penalties—physical therapists and physical therapist assistants). Within 6 months after the issuance of a citation under § 43b.25 for failure to complete the required amount of continuing education, the licensee shall make up the deficiency and provide proof of the entire required amount of continuing education in subsection (b). In addition to a civil penalty assessed under this subsection, failure to complete the required amount of continuing education and to provide the Board with proof of completion of the required amount of continuing education within 6 months after the issuance of a citation under § 43b.25 will subject the licensee to disciplinary action under section 11(a)(6) of the act (63 P. S. § 1311(a)(6)) for committing unprofessional conduct as defined in § 40.52(11). This subsection does not apply to a licensee who permitted the licensee's license to expire at the conclusion of a biennial renewal period for which the licensee did not complete the required amount of continuing education and did not practice the profession prior to reactivating that license under § 40.20(c) upon a demonstration that the licensee subsequently completed the required deficient continuing education.
Subchapter C. PHYSICAL THERAPIST ASSISTANTS
MAINTENANCE OF CERTIFICATION § 40.192. Continuing education for certified physical therapist assistant.
* * * * * (e) Authoring publications. A certified physical therapist assistant may earn continuing education credit for authoring publications as provided in this subsection.
* * * * * (4) Credit for authoring a publication will be awarded only for the biennial renewal period in which it was published.
(f) Disciplinary action authorized. Unless otherwise excused by the act or this chapter, failure to complete the minimum required amount of continuing education during the applicable renewal period will subject the certified physical therapist assistant to discipline under section 12(c) of the act (63 P. S. § 1312(c)) in accordance with the schedule of civil penalties in § 43b.25 (relating to schedule of civil penalties—physical therapists and physical therapist assistants). Within 6 months after the issuance of a citation under § 43b.25 for failure to complete the required amount of continuing education, the physical therapist assistant shall make up the deficiency and shall provide proof of the entire required amount of continuing education in subsection (b). In addition to a civil penalty assessed under this subsection, failure to complete the required amount of continuing education and to provide the Board with proof of completion of the required amount of continuing education within 6 months after the issuance of a citation under § 43b.25 will subject the certified physical therapist assistant to disciplinary action under section 9.1(f) of the act for committing unprofessional conduct as provided in § 40.181(a)(6). This subsection does not apply to a certified physical therapist assistant who permitted the physical therapist assistant's certificate to expire at the conclusion of a biennial renewal period for which the physical therapist assistant did not complete the required amount of continuing education and did not provide patient services prior to reactivating that certificate under § 40.191(g) upon a demonstration that the physical therapist assistant subsequently completed the required deficient continuing education.
[Pa.B. Doc. No. 14-2357. Filed for public inspection November 14, 2014, 9:00 a.m.]
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