PRINTER'S NO. 389
No. 339 Session of 2007
INTRODUCED BY BARRAR, BOYD, CALTAGIRONE, DALEY, DENLINGER,
GRUCELA, JAMES, REICHLEY, THOMAS AND TRUE, FEBRUARY 9, 2007
REFERRED TO COMMITTEE ON PROFESSIONAL LICENSURE,
FEBRUARY 9, 2007
AN ACT
1 Amending the act of July 2, 1993 (P.L.345, No.48), entitled "An
2 act empowering the General Counsel or his designee to issue
3 subpoenas for certain licensing board activities; providing
4 for hearing examiners in the Bureau of Professional and
5 Occupational Affairs; providing additional powers to the
6 Commissioner of Professional and Occupational Affairs; and
7 further providing for civil penalties and license
8 suspension," defining "discipline" and "victim"; further
9 providing for additional powers of the boards and commissions
10 within the Bureau of Professional and Occupational Affairs;
11 and providing for mandatory restitution and mandatory
12 repayment of cost of prosecution.
13 The General Assembly of the Commonwealth of Pennsylvania
14 hereby enacts as follows:
15 Section 1. Sections 1 and 5(b) of the act of July 2, 1993
16 (P.L.345, No.48), entitled, "An act empowering the General
17 Counsel or his designee to issue subpoenas for certain licensing
18 board activities; providing for hearing examiners in the Bureau
19 of Professional and Occupational Affairs; providing additional
20 powers to the Commissioner of Professional and Occupational
21 Affairs; and further providing for civil penalties and license
22 suspension," are amended to read:
1 Section 1. Definitions.
2 The following words and phrases when used in this act shall
3 have the meanings given to them in this section unless the
4 context clearly indicates otherwise:
5 "Disciplinary matter." Any matter subject to a licensing
6 board's or commission's jurisdiction in which the licensing
7 board or commission has the authority to refuse, suspend, revoke
8 or limit a license, registration, certificate or permit or to
9 impose a civil penalty or other discipline under any act.
10 "Discipline." A sanction imposed by a licensing board or
11 licensing commission upon an individual for a violation of a
12 practice act or a regulation of a licensing board or licensing
13 commission.
14 "Licensing boards." Those departmental or administrative
15 boards under the Bureau of Professional and Occupational Affairs
16 in the Department of State.
17 "Licensing commissions." Those departmental or
18 administrative commissions under the Bureau of Professional and
19 Occupational Affairs in the Department of State.
20 "Victim." An individual who has sustained injury to person
21 or property as a direct result of acts or omissions on the part
22 of an individual upon whom discipline is being imposed in a
23 disciplinary matter.
24 Section 5. Civil penalties.
25 * * *
26 (b) Additional powers.--In addition to the disciplinary
27 powers and duties of the boards and commissions within the
28 Bureau of Professional and Occupational Affairs under their
29 respective practice acts, boards and commissions shall have the
30 power, respectively:
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1 (1) To impose discipline on any licensee, registrant,
2 certificate holder or permit holder who violates a lawful
3 disciplinary order of the board.
4 (2) To impose discipline on any licensee, registrant,
5 certificate holder or permit holder who aids and abets the
6 unlicensed practice of a profession, occupation or business.
7 (3) To levy a civil penalty of not more than $1,000 on
8 any corporation, partnership, institution, association or
9 sole proprietorship which aids and abets any individual in
10 the unlicensed practice of a profession. This penalty shall
11 not, however, be levied against any person solely as a
12 consequence of that person being a patient or client of the
13 unlicensed individual.
14 (4) To impose mandatory restitution and mandatory
15 repayment of the cost of investigation and prosecution in a
16 disciplinary matter as set forth in section 5.1.
17 * * *
18 Section 2. The act is amended by adding a section to read:
19 Section 5.1. Mandatory restitution and mandatory repayment of
20 cost of prosecution.
21 (a) Requirement.--In all disciplinary matters before a
22 licensing board or commission where the board or commission
23 imposes discipline, the licensing board or commission shall
24 order the individual to make restitution to the victim. In
25 addition, the licensing board or commission shall order the
26 individual to repay the cost of investigation and prosecution by
27 the Department of State. Restitution and repayment of
28 investigation and prosecution costs shall be in addition to any
29 other sanction imposed by a licensing board or commission.
30 (b) Losses recoverable.--A victim may recover losses
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1 sustained to person or property as a direct result of acts or
2 omissions on the part of an individual upon whom discipline is
3 imposed in a disciplinary matter, as set forth in this section.
4 (c) Mandatory nature.--The licensing board or commission
5 shall order full restitution to the victim and full repayment of
6 the cost of investigation and prosecution regardless of the
7 financial resources of the individual.
8 (d) Reduction.--The licensing board or commission shall not
9 reduce a restitution award by any amount received from the Crime
10 Victim's Compensation Fund or any other governmental agency but
11 shall order that the individual pay any restitution ordered for
12 losses previously compensated by the Crime Victim's Compensation
13 Fund or other governmental agency to the fund or the agency.
14 Further, the licensing board or commission shall not reduce a
15 restitution award by any amount received by an insurance company
16 but shall order the individual to pay any restitution ordered
17 for loss previously compensated by an insurance company to the
18 insurance company.
19 (e) Priority.--If restitution to more than one victim is set
20 by the licensing board or commission, the board or commission
21 shall set the priority of payment. However, when establishing
22 priorities, the licensing board or commission shall order
23 payment in the following order:
24 (1) The victim.
25 (2) The Crime Victim's Compensation Fund.
26 (3) Another governmental agency which has provided
27 reimbursement to the victim as a result of the individual's
28 conduct.
29 (4) An insurance company which has provided
30 reimbursement to the victim as a result of the individual's
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1 conduct.
2 (f) Judgment.--Restitution to the victim and repayment of
3 costs ordered pursuant to this section shall be a judgment in
4 favor of the Bureau of Professional and Occupational Affairs
5 upon the individual subject to the order of the licensing board
6 or commission. The Attorney General shall be responsible for
7 enforcing the judgment in courts of competent jurisdiction.
8 (g) Preservation of assets subject to restitution.--Upon
9 application of the Attorney General, the court may enter a
10 restraining order or injunction or take any other action to
11 preserve the availability of property which may be necessary to
12 satisfy a restitution or repayment order.
13 (h) Period of time.--Notwithstanding any provision of law to
14 the contrary, the period of time during which a judgment shall
15 have full effect may exceed the maximum period for the
16 revocation or suspension of a license, registration, certificate
17 or permit.
18 (i) Collection.--Restitution shall be made by the individual
19 to the licensing board or commission. Notwithstanding any
20 provision of law to the contrary, the Commissioner of
21 Professional and Occupational Affairs shall collect the
22 restitution on behalf of the licensing board or commission. The
23 commissioner shall maintain records of the restitution order and
24 its satisfaction and shall forward to the victim the restitution
25 ordered.
26 (j) Cost of investigation and prosecution.--Repayment of
27 costs associated with investigation and prosecution shall be
28 made by the individual to the licensing board or commission.
29 Notwithstanding any provision of law to the contrary, the
30 Commissioner of Professional and Occupational Affairs shall
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1 collect the cost of repayment on behalf of the licensing board
2 or commission. The moneys shall be deposited into the
3 Professional Licensure Augmentation Account.
4 (k) Payment.--Not less than 75% of all moneys collected by
5 the Commissioner of Professional and Occupational Affairs shall,
6 until satisfaction of the individual's restitution obligation,
7 be used to pay restitution to a victim. Any remaining money
8 shall be used to repay the cost of investigation and
9 prosecution.
10 (l) Amount.--At the time of imposition of discipline, the
11 licensing board or commission shall specify the amount of
12 restitution to the victim and the amount of repayment to the
13 Department of State. The order of restitution and the order to
14 repay the cost of investigation and prosecution may be made in a
15 lump sum, by monthly installments or any other method the
16 licensing board or commission deems just. The amount and the
17 method of payment shall not be reviewable in any court.
18 (m) Responsibility of prosecuting attorney.--It shall be the
19 responsibility of the prosecuting attorney of a licensing board
20 or commission to:
21 (1) Make a recommendation to the licensing board or
22 commission as to the amount of restitution to be ordered. The
23 recommendation shall be based on information solicited by the
24 prosecuting attorney and received from the victim, the
25 victim's family or victim's representative. If the
26 prosecuting attorney has solicited information from the
27 victim, the victim's family or victim's representative and
28 has received no response, the prosecuting attorney shall,
29 based upon available information, make a recommendation.
30 (2) Provide the licensing board or commission a
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1 calculation of the cost of investigation and prosecution
2 incurred by the Department of State.
3 (n) Alteration of restitution order.--The licensing board or
4 commission may order the amount of restitution recommended by
5 the prosecuting attorney or order another sum. If the licensing
6 board or commission orders a sum other than that recommended by
7 the prosecuting attorney, the board or commission shall state on
8 the record its reasons and conclusions.
9 (o) Preservation of private remedies.--No judgment or order
10 of restitution shall prevent the victim from recovering, by
11 appropriate action, compensation from the individual as
12 otherwise provided by law. However, any civil award shall be
13 reduced by any amount paid pursuant to the restitution ordered
14 pursuant to this section.
15 Section 3. This act shall take effect in 60 days.
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