RULES AND REGULATIONS

Title 49—PROFESSIONAL AND VOCATIONAL STANDARDS

BUREAU OF PROFESSIONAL AND OCCUPATIONAL AFFAIRS

[ 49 PA. CODE CH. 43b ]

Schedule of Civil Penalties—Optometrists

[45 Pa.B. 3360]
[Saturday, June 27, 2015]

 The Acting Commissioner of Professional and Occupational Affairs (Commissioner) adds § 43b.25 (relating to schedule of civil penalties—optometrists) to read as set forth in Annex A.

Effective Date

 The final-form rulemaking will be effective upon 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 in the Bureau of Professional and Occupational Affairs (Bureau), to promulgate a schedule of civil penalties for violations of the acts or regulations of the licensing boards.

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, a licensee who receives an Act 48 citation retains due process rights to a hearing prior to the imposition of judgment. 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. Section 5(b)(4) of Act 48 authorizes the State Board of Optometry (Board), as a licensing board within the Bureau, to levy a civil penalty of not more than $10,000 on any licensee or unlicensed person who violates a provision of the Optometric Practice and Licensure Act (act) (63 P. S. §§ 244.1—244.12) or Board regulations. However, section 5(a) of Act 48 limits the civil penalty levied by citation to no more than $1,000 per violation.

 This is the first time that the Board will participate in the Act 48 citation program. The Board and the Commissioner believe that it is necessary to implement the civil penalties in this final-form rulemaking to streamline the disciplinary process to be more efficient and cost effective.

 This schedule of civil penalties sets forth penalties for practicing on a lapsed license as well as for failure to complete the required 30 hours of approved continuing education. The civil penalty schedule for failure to complete the required hours of continuing education in accordance with § 23.82(a) (relating to continuing education hour requirements) is in addition to and not instead of the requirement under section 5(b) of the act (63 P. S. § 244.5(b)) that licensees may not renew a license if the licensee has not completed the required hours of continuing education. That is, the Board will not renew a license unless the licensee certifies to the Board that all required continuing education has been completed. The Board intends to follow this final-form rulemaking with a rulemaking that, among other things, clarifies that a licensee who receives a citation for continuing education violations must make up the deficiency and that the hours of continuing education submitted to the Board to make up for a deficiency may not be used to satisfy the continuing education requirement for the current biennium.

Summary of Comments

 The proposed rulemaking was published at 44 Pa.B. 2247 (April 12, 2014) with a 30-day public comment period. On May 8, 2014, the Pennsylvania Optometric Association submitted a letter stating that they ''have reviewed these proposed penalties and have no additional recommendations.'' The Commissioner did not receive other public comments. On June 11, 2014, the Independent Regulatory Review Commission (IRRC) sent a letter to the Commissioner indicating that IRRC did not have objections, comments or recommendations to offer on the proposed rulemaking. Neither the House Professional Licensure Committee (HPLC) nor the Senate Consumer Protection and Public Licensure Committee (SCP/PLC) submitted comments on the proposed rulemaking.

Fiscal Impact and Paperwork Requirements

 The final-form rulemaking will not have adverse fiscal impact on the Commonwealth or its political subdivisions. The final-form rulemaking will reduce the paperwork requirements of the Commonwealth and the regulated community by eliminating the need for orders to show cause, answers, consent agreements, and adjudications and orders for those violations subject to the Act 48 citation process. The only fiscal impact of the final-form rulemaking is borne by those persons who violate the act or the regulations of the Board and are subject to the civil penalties in this schedule.

Sunset Date

 The Commissioner and the Board continuously monitor the effectiveness of their 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 March 28, 2014, the Board submitted a copy of the notice of proposed rulemaking, published at 44 Pa.B. 2247, to IRRC and the Chairpersons of the HPLC and the SCP/PLC for review and comment.

 Under section 5(c) of the Regulatory Review Act, IRRC, the HPLC and the SCP/PLC were provided with copies of the comments received during the public comment period, as well as other documents when requested. In preparing the final-form rulemaking, the Board has considered all comments from IRRC, the HPLC, the SCP/PLC and the public.

 Under section 5.1(j.2) of the Regulatory Review Act (71 P. S. § 745.5a(j.2)), on May 27, 2015, the final-form rulemaking was deemed approved by the HPLC and the SCP/PLC. Under section 5(g) of the Regulatory Review Act, the final-form rulemaking was deemed approved by IRRC effective May 27, 2015.

Contact Person

 Further information may be obtained by contacting the Commissioner or the State Board of Optometry, P.O. Box 2649, Harrisburg, PA 17105-2649, RA-optometry@pa.gov.

Findings

 The Commissioner 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) and the regulations promulgated thereunder, 1 Pa. Code §§ 7.1 and 7.2.

 (2) A public comment period was provided as required by law and the comments were considered.

 (3) This final-form rulemaking is necessary and appropriate for administering and enforcing the authorizing act identified in this preamble.

Order

 The Commissioner, acting under the authority of Act 48, orders that:

 (a) The regulations of the Commissioner, 49 Pa. Code Chapter 43b, are amended by adding § 43b.25 to read as set forth in Annex A.

 (b) The Commissioner shall submit this order and Annex A to the Office of General Counsel and the Office of Attorney General as required by law.

 (c) The Commissioner shall certify this order and Annex A and deposit them with the Legislative Reference Bureau as required by law.

 (d) This order shall take effect on publication in the Pennsylvania Bulletin.

IAN J. HARLOW, 
Acting Commissioner

 (Editor's Note: For the text of the order of the Independent Regulatory Review Commission relating to this document, see 45 Pa.B. 2961 (June 13, 2015).)

 Fiscal Note: Fiscal Note 16A-5212 remains valid for the final adoption of the subject regulation.

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.25. Schedule of civil penalties—optometrists.

STATE BOARD OF OPTOMETRY

Violation under 63 P. S.	Title/Description	Civil Penalty
Section 244.8(d)	Practicing or offering to practice optometry by person whose license is expired.	1st offense—less than 5 months—$250; 5 months to 8 months—$500; over 8 months to 12 months—$1,000; over 12 months—formal action   2nd offense—less than 6 months—$500; 6 months to 12 months—$1,000; over 12 months—formal action   3rd or subsequent offense—formal action

Violation under 49 Pa. Code	Title/Description	Civil Penalty
§ 23.82(a)	Failure to complete required hours of continuing education during the 2 years preceding renewal or reactivation.	1st offense—20 or fewer hours of deficiency—$50 per hour; more than 20 hours of deficiency—formal action   2nd offense—10 or fewer hours of deficiency—$100 per hour; more than 10 hours of deficiency—formal action   3rd or subsequent offense—formal action

[Pa.B. Doc. No. 15-1202. Filed for public inspection June 26, 2015, 9:00 a.m.]

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