PROPOSED RULEMAKING
STATE BOARD OF OPTOMETRY
[ 49 PA. CODE CH. 23 ]
License by Endorsement
[51 Pa.B. 6046]
[Saturday, September 18, 2021]The State Board of Optometry (Board) proposes to add §§ 23.27, 23.27a and 23.27b (relating to definitions; license by endorsement; and provisional endorsement license) to read as set forth in Annex A.
Effective Date
The amendments will be effective upon publication of the final-form rulemaking in the Pennsylvania Bulletin.
Statutory Authority
Section 3111 of 63 Pa.C.S. (relating to licensure by endorsement) requires licensing boards and commissions to issue a license, certificate, registration or permit to an applicant to allow practice in this Commonwealth provided the applicant meets the following criteria: holds a current license, certificate, registration or permit from another state, territory or country whose licensing requirements are substantially equivalent to or exceed the requirements in this Commonwealth; demonstrates competency; has not committed any act that constitutes grounds for refusal, suspension or revocation of a license, certificate, registration or permit to practice that profession or occupation in this Commonwealth, unless the board or commission determines such conduct is not an impediment to granting the license, certificate, registration or permit; is in good standing and has not been disciplined by the jurisdiction that issued the license, certificate, registration or permit, unless the board or commission determines such conduct is not an impediment to granting the license, certificate, registration or permit; and the applicant pays fees, as established by regulation. Additionally, 63 Pa.C.S. § 3111 authorizes boards and commissions to issue a provisional license, certificate, registration or permit while an applicant is satisfying remaining requirements for licensure by endorsement, for which the Board must set by regulation the terms of expiration. Additionally, section 3(b)(14) of the Optometric Practice and Licensure Act (act) (63 P.S. § 244.3(b)(14)) provides the Board with authority to promulgate all rules and regulations necessary to carry out the purposes of the act.
The act of July 1, 2020, (P.L. 575, No. 53) added 63 Pa.C.S. § 3111 as part of the consolidation of the act of July 2, 1993 (P.L. 345, No. 48) (Act 48) into 63 Pa.C.S. Chapter 31 (relating to powers and duties). The text of 63 Pa.C.S. § 3111 was originally added to Act 48 by the act of July 1, 2019 (P.L. 292, No. 41) (Act 41).
Background and Need for the Amendments
This proposed rulemaking is needed to effectuate 63 Pa.C.S. § 3111, which requires the Board to issue a license, certificate, registration or permit to applicants who meet the requirements for licensure by endorsement as set forth in 63 Pa.C.S. § 3111. Under 63 Pa.C.S. § 3111, the Board must determine whether standards for licensure are substantially equivalent to or exceed those established by the Board. Additionally, 63 Pa.C.S. § 3111 requires the Board to determine the methods of competency, including completion of continuing education or experience in the profession or occupation for at least 2 of the 5 years preceding the date of the application, and must establish, by regulation, the expiration of a provisional endorsement license. This proposed rulemaking sets forth the criteria for eligibility for licensure by endorsement, including the specific methods required for an applicant to demonstrate competency as well as requirements for granting a provisional endorsement license.
Description of the Proposed Amendments
The Board proposes to add § 23.27 which will set forth the definition of ''jurisdiction'' consistent with 63 Pa.C.S. § 3111. Proposed § 23.27a requires an applicant to provide proof that the applicant meets seven criteria required for licensure by endorsement. The first criterion, as set forth in proposed subsection (a)(1), requires an applicant to provide proof of a current license, certification, registration or permit in good standing to practice in another jurisdiction whose standards are substantially equivalent to or exceed those established by the Board under section 4 of the act (63 P.S. § 244.4). Proposed subsection (a)(1) further requires an applicant to submit a copy of the current applicable law, regulation or other rule governing licensure, certification, registration or permit requirements and scope of practice in the jurisdiction that issued the license, certificate, registration or permit. This proposed rulemaking would also require that the copy of the applicable law, regulation or other rule include the enactment date. Additionally, because 63 Pa.C.S. § 3111 is applicable to territories and other countries that use languages other than English, where the applicable law, regulation or other rule is in a language other than English, the Board would require, at the applicant's expense, translation of the applicable law, regulation or other rule by a professional translation service.
Proposed subsection (a)(2) requires demonstration of competency. Under this provision, an applicant must provide proof of competency by demonstrating experience in the practice of the profession, completion of continuing education or achievement of a passing score in a Board-approved skills examination. Regarding experience, an applicant must demonstrate active engagement in the practice of profession for at least 2 of the 5 years immediately preceding the date of the application in the jurisdiction that issued the license, certificate, registration or permit. Regarding continuing education, an applicant must submit proof of completion of 30 hours of continuing education which meets the requirements of §§ 23.82 and 23.83 (relating to continuing education hour requirements; continuing education reporting; audit and enforcement; and continuing education subject matter). The continuing education must be completed during the 24 months immediately preceding the date of the application. The Board proposes completion of the continuing education within 24 months immediately preceding the date of the application because a 24-month limitation correlates with the Board's biennial renewal continuing education requirement. Regarding a skills examination, within 2 years immediately preceding the date of the application, the applicant must have achieved a passing score on the National Board of Examiners in Optometry Clinical Skills Assessment Examination or its equivalent, as determined by the Board.
Proposed subsection (a)(3) and (4) incorporate the statutory prohibitions in 63 Pa.C.S. § 3111 pertaining to conduct that would constitute grounds for refusal, suspension or revocation of a license, certificate, registration or permit to practice the profession or occupation, and prior discipline by the jurisdiction that issued the license.
Proposed subsection (a)(5) provides for payment of an application fee, as required under 63 Pa.C.S. § 3111(a)(5). The applicable fee for licensure by endorsement under 63 Pa.C.S. § 3111 is the license application fee in § 23.91 (relating to fees) of the Board's current fee schedule ($25). Next, proposed subsection (a)(6) requires applicants to apply for licensure in accordance with Chapter 23, in the manner and format prescribed by the Board.
Finally, proposed subsection (a)(7) requires completion of 3 hours of training in child abuse recognition and reporting, which is mandated continuing education under 23 Pa.C.S. § 6383(b)(3)(i) (relating to education and training), known as the Child Protective Services Law.
Under proposed § 23.27a(b) the Board may require a personal interview or additional information to assist the Board in determining eligibility and competency. When a personal interview is necessary, to the extent practicable, the Board intends to offer flexibility in the manner in which an interview is conducted to include teleconference or video conferencing.
Consistent with 63 Pa.C.S. § 3111(a)(3) and (4), proposed § 23.27a(c) authorizes the Board in its discretion to determine that an act prohibited under section 7 of the act (63 P.S. § 244.7), §§ 23.61—23.65 (relating to unlawful practices) or disciplinary action by a jurisdiction is not an impediment to licensure.
Consistent with section 63 Pa.C.S. § 3111(b), proposed § 23.27b provides that the Board, in its discretion, may issue a provisional endorsement license while an applicant is satisfying remaining requirements under 63 Pa.C.S.§ 3111 and proposed § 23.27a. Proposed § 23.27b(b) sets the expiration of a provisional endorsement license at 1 year, unless the Board determines that an expiration date of less than 1 year is appropriate. Additionally, upon a written request, the Board may extend the term of the license upon a showing of good cause. Proposed § 23.27b(c) sets forth reasons for which a provisional endorsement license will be terminated by the Board, including when the Board denies a license, or the provisional endorsement licensee fails to comply with the terms of a provisional endorsement license. Finally, proposed § 23.27b(d) clarifies that while an individual may reapply for a license by endorsement under proposed § 23.27a, the Board will not issue a subsequent provisional endorsement license to an applicant who previously held a provisional endorsement license that expired or was terminated.
Fiscal Impact and Paperwork Requirements
This proposed rulemaking will have no adverse fiscal impact on the Commonwealth or its political subdivisions. The costs to the Board related to processing applications for licensure by endorsement will be recouped through fees paid by applicants. Applicants who apply for licensure by endorsement will be impacted by the $25 application fee in § 23.91 and may incur continuing education expenses or examination expenses if they choose to demonstrate competency by completion of continuing education or through examination. Applicants must complete child abuse recognition and reporting training, as required under 23 Pa.C.S. § 6383(b)(3)(i). There are free in-person and online child abuse recognition and reporting training options available; therefore, the Board does not anticipate a negative fiscal impact for this statutorily mandated training.
Sunset Date
The Board continuously monitors the cost effectiveness of the Board's regulations. Therefore, no sunset date has been assigned.
Regulatory Review
Under section 5(a) of the Regulatory Review Act (71 P.S. § 745.5(a)), on September 2, 2021, 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 to the Chairpersons of 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 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 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, recommendations or objections regarding this proposed rulemaking to the Board Counsel, P.O. Box 69523, Harrisburg, PA 17106-9523 or by e-mail at RA-STRegulatoryCounsel@pa.gov within 30 days of publication of this proposed rulemaking in the Pennsylvania Bulletin. Reference 16A-5218 (Licensure by Endorsement), when submitting comments.
LUANNE K. CHUBB OD, FAAO,
ChairpersonFiscal Note: 16A-5218. 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 23. STATE BOARD OF OPTOMETRY
LICENSE BY RECIPROCITY AND INTERSTATE CERTIFICATION (Editor's Note: The following sections are proposed to be added and are printed in regular type to enhance readability.)
§ 23.27. Definitions.
The following word or term, when used in § 23.27a (relating to license by endorsement) has the following meaning, unless the context clearly indicates otherwise:
Jurisdiction—A state, territory or country.
§ 23.27a. License by endorsement.
(a) Requirements for issuance. To be issued a license by endorsement under 63 Pa.C.S. § 3111 (relating to licensure by endorsement), an applicant must satisfy all of the following conditions:
(1) Have a current license, certification, registration or permit in good standing to practice optometry in another jurisdiction whose standards are substantially equivalent to or exceed those established under section 4 of the act (63 P.S. §§ 244.4) and §§ 23.11—23.15, 23.202 and 23.205. The following apply:
(i) An applicant must submit a copy of the current applicable law, regulation or other rule governing licensure, certification, registration or permit requirements and scope of practice in the jurisdiction that issued the license, certificate, registration or permit.
(ii) If the applicable law, regulation or other rule is in a language other than English, at the applicant's expense, the applicable law, regulation or other rule shall be translated by a professional translation service and verified to be complete and accurate.
(iii) The copy of the applicable law, regulation or other rule must include the enactment date.
(2) Demonstrate competency by one of the following:
(i) Experience in the practice of optometry by demonstrating, at a minimum, that the applicant has actively engaged in the practice of optometry in the jurisdiction that issued the license, certificate, registration or permit for at least 2 of the 5 years immediately preceding the filing of the application with the Board.
(ii) Completion of 30 hours of continuing education that meets the requirements of §§ 23.82 and 23.83 (relating to continuing education hour requirements; continuing education reporting; audit and enforcement; and continuing education subject matter) during the 24 months immediately preceding the date of the application.
(iii) Achieve a passing score on the NBEO Clinical Skills Assessment Examination or its equivalent, as determined by the Board, within 2 years immediately preceding the date of the application.
(3) Have not committed any act prohibited by section 7 of the act (63 P.S. § 244.7) or §§ 23.61—23.65 (relating to unlawful practices).
(4) Have not been disciplined by the jurisdiction that issued the license, certificate, registration or permit.
(5) Pay the license application fee as required by § 23.91 (relating to fees).
(6) Apply for licensure in accordance with this chapter in the manner and format prescribed by the Board.
(7) Complete 3 hours of training in child abuse recognition and reporting from a provider approved by the Department of Human Services as required under 23 Pa.C.S. § 6383(b)(3)(i) (relating to education and training).
(b) Interview and additional information. An applicant may be required to appear before the Board for a personal interview and may be requested to submit additional information, including supporting documentation relating to competency and experience. The applicant may request the interview to be conducted by video teleconference for good cause shown.
(c) Prohibited acts. Notwithstanding subsection (a)(3) and (4), the Board may, in its discretion, determine that an act prohibited under section 7 of the act or §§ 23.61—23.65, or disciplinary action by a jurisdiction is not an impediment to licensure under 63 Pa.C.S. § 3111.
§ 23.27b. Provisional endorsement license.
(a) Provisional endorsement license. The Board may, in its discretion, issue a provisional endorsement license to an applicant while the applicant is satisfying remaining requirements for licensure by endorsement under 63 Pa.C.S. § 3111 (relating to licensure by endorsement) and § 23.27a (relating to license by endorsement).
(b) Expiration of a provisional endorsement license.
(1) An individual holding a provisional endorsement license may practice for up to 1 year after issuance of the provisional endorsement license. The Board, in its discretion, may determine that an expiration date of less than 1 year is appropriate.
(2) Upon a written request and a showing of good cause, the Board may grant an extension of no longer than 1 year from the expiration date of the provisional endorsement license.
(c) Termination of a provisional endorsement license. A provisional endorsement license terminates upon either of the following:
(1) The Board denies the license.
(2) The license holder fails to comply with the terms of the provisional endorsement license.
(d) Reapplication. An individual may reapply for licensure by endorsement under § 23.27a after expiration or termination of a provisional endorsement license, but the individual may not be issued a subsequent provisional endorsement license.
[Pa.B. Doc. No. 21-1573. Filed for public inspection September 17, 2021, 9:00 a.m.]
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