S0637B0780A03516 DMS:AAS 10/29/19 #90 A03516
AMENDMENTS TO SENATE BILL NO. 637
Sponsor: SENATOR TOMLINSON
Printer's No. 780
Amend Bill, page 1, line 4, by inserting after "agencies"
; and making related repeals
Amend Bill, page 1, line 9, by striking out "subsections" and
inserting
a subsection
Amend Bill, page 1, lines 11 and 12, by striking out all of
said lines and inserting
(a) [State agencies.--Except as provided by this chapter]
Permissible use of information.--
(1) Except as provided in subsection (e), a board,
commission or department of the Commonwealth, when
Amend Bill, page 1, line 16, by striking out the bracket
before "but"
Amend Bill, page 1, lines 16 and 17, by striking out "] only
in accordance with this chapter. Convictions "
Amend Bill, page 1, by inserting after line 18
(2) This subsection shall not apply to the Supreme
Court, or an entity of the Supreme Court, in its capacity to
govern the practice, procedure and conduct of all courts, the
admission to the bar, the practice of law, the administration
of all courts and supervision of all officers of the judicial
branch.
Amend Bill, page 2, line 1, by striking out the bracket
before "The"
Amend Bill, page 2, lines 1 through 3, by striking out "]
Notwithstanding" in line 1, all of line 2 and "registration or
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permitting, the" in line 3
Amend Bill, page 2, line 15, by striking out the bracket
before "relate"
Amend Bill, page 2, lines 17 through 19, by striking out "]
directly relate to the trade, occupation or" in line 17 and all
of lines 18 and 19
Amend Bill, page 2, lines 21 through 23, by striking out
"Notwithstanding any" in line 21, all of line 22 and
"registration or permitting, the boards," in line 23 and
inserting
Except as provided in subsection (e), boards,
Amend Bill, page 2, line 27, by striking out the bracket
before "for"
Amend Bill, page 3, lines 3 through 30; page 4, lines 1
through 30; page 5, lines 1 through 14; by striking out "] based
in whole or in part on a" in line 3, all of lines 4 through 30
on page 3, all of lines 1 through 30 on page 4 and all of lines
1 through 14 on page 5 and inserting
* * *
(e) Bureau of Professional and Occupational Affairs.--
(1) A board or commission under the Bureau of
Professional and Occupational Affairs in the Department of
State, when determining eligibility for licensure,
certification, registration or permission to engage in a
profession or occupation, may consider convictions of the
applicant of crimes only in accordance with this section.
Convictions shall not automatically preclude the issuance of
a license, certificate, registration or permit.
(2) Notwithstanding any other provision of law
concerning licensing, certification, registration or
permitting in the various practice acts, in addition to the
restrictions in subsection (b), a board or commission under
the Bureau of Professional and Occupational Affairs shall not
consider a conviction which does not directly relate to the
duties, functions and responsibilities in the practice of the
profession or occupation for which the license, certificate,
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registration or permit is sought, unless it is proven by the
prosecutor for the board or commission by a preponderance of
the evidence and based on the individualized assessment
required by paragraph (3) that the applicant poses an
unacceptable risk to the people with whom the applicant would
interact in the conduct of the profession or occupation.
(3) A board or commission under the Bureau of
Professional and Occupational Affairs may refuse to grant or
renew, or may suspend, revoke or otherwise discipline a
license, certificate, registration or permit of an individual
based in whole or in part on a conviction of a crime if all
of the following apply:
(i) The individual has been convicted of a felony or
misdemeanor which directly relates to the duties,
functions and responsibilities in the practice of the
profession or occupation or which, based on the facts and
circumstances of the particular crime, demonstrates that
the individual poses an unacceptable risk to the people
with whom the individual would interact in the practice
of the profession or occupation.
(ii) The board or commission has conducted an
individualized assessment of the relation of the
conviction to the individual's overall suitability to
engage in the profession or occupation. An individualized
assessment conducted under this subparagraph shall
include a consideration of the particular facts or
circumstances surrounding the crime, the length of time
since the crime occurred and the grade and seriousness of
the crime.
(4) A board or commission under the Bureau of
Professional and Occupational Affairs may not refuse to grant
or renew and may not suspend, revoke or otherwise discipline
a license, certificate, registration or permit under
paragraph (3) if the individual can present evidence of the
particular facts and circumstances surrounding the crime, and
the individual's overall criminal history record, which
demonstrates that the individual does not pose an
unacceptable risk to people with whom the individual would
interact in the conduct of the profession or occupation, or
if the individual can show rehabilitation and fitness to
perform the duties, functions and responsibilities in the
practice of the profession or occupation. Where the crime is
directly related to the duties, functions and
responsibilities in the practice of the profession or
occupation, the board or commission shall consider relevant
proof of any factor that would show that the individual does
not pose an unacceptable risk, demonstrate rehabilitation or
establish fitness to perform the duties of the profession or
occupation, including:
(i) Facts or circumstances regarding the crime.
(ii) Number of offenses for which the individual was
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convicted.
(iii) Increase in age and maturity of the individual
since the date of the conviction for the crime or release
from a correctional institution.
(iv) The individual's criminal history, or lack of
criminal history, after the date of the crime while
engaged in the same or similar profession or occupation.
(v) Length and consistency of employment history
before and after the date of the crime.
(vi) Participation in education and training
activities.
(vii) Employment or character references and any
other information regarding fitness for practice in the
profession or occupation.
(viii) Any other factor that would show the
individual does not pose an unacceptable risk, is capable
of being rehabilitated or is fit to perform the duties of
the profession or occupation.
(5) An applicant with a criminal history who, based on a
review of the regulations published by the board or
commission under paragraph (9) is unable to determine whether
the applicant's criminal record would preclude the issuance
of a license, certificate, registration or permit, may file a
petition for preliminary review with the board or commission
under the Bureau of Professional and Occupational Affairs
seeking a preliminary decision on whether the applicant's
criminal history would disqualify the applicant from
receiving a license, certificate, registration or permit,
subject to the following:
(i) If the petition is filed separately from a
formal application for a license, certificate,
registration or permit, the board or commission shall
issue a preliminary decision within 45 days. The
preliminary decision shall be limited to a declaration of
whether a conviction on the petitioner's criminal history
record falls within the set of convictions that the board
or commission has previously determined may be directly
related to the profession or occupation over which the
board or commission has authority.
(ii) In the event that the board or commission
determines a conviction on the petitioner's criminal
history record is directly related to the duties,
functions and responsibilities in the practice of the
profession or occupation, the notice of the preliminary
decision shall inform the petitioner that the
determination is not final or binding as to whether the
petitioner qualifies for a license, certificate,
registration or permit, and that the petitioner has the
opportunity to present evidence of the factors specified
in paragraph (4) in connection with any subsequent formal
application for a license, certificate, registration or
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permit.
(iii) The board or commission may charge a filing
fee, which shall not exceed $45, to be paid for each
petition for preliminary review filed. On or after
January 1, 2022, the board or commission may establish by
regulation reasonable fees which may not exceed an amount
sufficient to reimburse the board or commission for the
administrative costs associated with processing the
petition for preliminary review. The board or commission
shall make available forms for petitioners to request in
forma pauperis status in connection with a petition. The
board or commission may not unreasonably deny in forma
pauperis status. A petitioner granted in forma pauperis
status shall be permitted to file a petition and receive
a preliminary decision without payment of the filing fee.
(iv) Except for the petitioner filing the petition,
a preliminary decision issued by a board, commission or
the department as a result of a petition for preliminary
review shall have no precedential value and may not be
relied upon by individuals applying for a license,
certificate, registration or permit.
(6) Each board or commission under the Bureau of
Professional and Occupational Affairs shall provide, on their
publicly accessible Internet website, a standardized form for
an applicant to petition for a preliminary review and shall
issue preliminary decisions upon promulgating final
regulations in accordance with paragraph (9) or within 18
months, whichever is sooner.
(7) A board or commission under the Bureau of
Professional and Occupational Affairs may not consider moral
character to make determinations of whether to grant or
renew, deny, suspend, revoke or otherwise discipline a
license, certificate, registration or permit.
(8) A board or commission under the Bureau of
Professional and Occupational Affairs may only consider
criminal history records and make determinations of whether
to grant or renew, deny, suspend, revoke or otherwise
discipline a license, certificate, registration or permit in
accordance with the limitations under this subsection. A
crime of moral turpitude may only be considered as grounds to
deny, revoke or otherwise discipline a license, certificate,
registration or permit if the board or commission has
determined that a conviction for such crime is directly
related to the duties, functions and responsibilities in the
practice of the profession or occupation. The provisions of
this section shall supersede any law or regulation to the
contrary.
(9) Each board or commission under the Bureau of
Professional and Occupational Affairs shall, within 18 months
from the effective date of this section, promulgate final
regulations, following public notice and comments, regarding
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the consideration of criminal history records as part of the
determination of whether to grant, deny, renew, suspend,
revoke or otherwise discipline a license, certificate,
registration or permit. The regulations shall include the
prescribed petition fee, as well as an explanation of the
convictions the board or commission has determined are
directly related to the duties, functions and
responsibilities in the practice of the profession or
occupation regulated by the board or commission.
Section 2. Repeals are as follows:
(1) The General Assembly declares that the repeals under
paragraph (2) are necessary to effectuate the amendment or
addition of 18 Pa.C.S. ยง 9124(a), (b), (c) and (e).
(2) The following acts and parts of acts are repealed:
(i) The penultimate and last sentence of section
3(c) of the act of May 1, 1933 (P.L.216, No.76), known as
The Dental Law, which read as follows: "The board shall
not issue a license to an applicant who has been
convicted of a felony under the act of April 14, 1972
(P.L.233, No.64), known as 'The Controlled Substance,
Drug, Device and Cosmetic Act,' or of an offense under
the laws of another jurisdiction which if committed in
this Commonwealth would be a felony under 'The Controlled
Substance, Drug, Device and Cosmetic Act,' unless: (1) at
least ten (10) years have elapsed from the date of
conviction, (2) the applicant satisfactorily demonstrates
to the board that he has made significant progress in
personal rehabilitation since the conviction such that
licensure of the applicant should not be expected to
create a substantial risk of harm to the health and
safety of his patients or the public or a substantial
risk of further criminal violations, and (3) the
applicant otherwise satisfies the qualifications
contained in or authorized by this act. As used in this
section the term 'convicted' shall include a judgment, an
admission of guilt or a plea of nolo contendere."
(ii) Section 10.1(b) of the act of May 23, 1945
(P.L.913, No.367), known as the Engineer, Land Surveyor
and Geologist Registration Law.
(iii) Section 6(c) of the act of May 22, 1951
(P.L.317, No.69), known as The Professional Nursing Law.
(iv) The antepenultimate, penultimate and last
sentence of section 5 of the act of March 2, 1956 (1955
P.L.1211, No.376), known as the Practical Nurse Law,
which read as follows: "The board shall not issue a
license or certificate to an applicant who has been
convicted of a felonious act prohibited by the act of
April 14, 1972 (P.L.233, No.64), known as 'The Controlled
Substance, Drug, Device and Cosmetic Act,' or convicted
of a felony relating to a controlled substance in a court
of law of the United States or any other state, territory
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or country unless:
(1) at least ten (10) years have elapsed from
the date of conviction;
(2) the applicant satisfactorily demonstrates to
the board that he has made significant progress in
personal rehabilitation since the conviction such
that licensure of the applicant should not be
expected to create a substantial risk of harm to the
health and safety of patients or the public or a
substantial risk of further criminal violations; and
(3) the applicant otherwise satisfies the
qualifications contained in or authorized by this
act.
As used in this section the term 'convicted' shall
include a judgment, an admission of guilt or a plea of
nolo contendere. An applicant's statement on the
application declaring the absence of a conviction shall
be deemed satisfactory evidence of the absence of a
conviction, unless the board has some evidence to the
contrary."
(v) Section 3(a)(6) of the act of September 27, 1961
(P.L.1700, No.699), known as the Pharmacy Act.
(vi) Section 6(a)(5) of the act of March 23, 1972
(P.L.136, No.52), known as the Professional Psychologists
Practice Act.
(vii) Section 9(b)(4) of the act of December 27,
1974 (P.L.995, No.326), known as the Veterinary Medicine
Practice Act.
(viii) The penultimate and last sentence of section
6(a) of the act of October 10, 1975 (P.L.383, No.110),
known as the Physical Therapy Practice Act, which read as
follows: "The board shall not issue a license to an
applicant who has been convicted of a felony under the
act of April 14, 1972 (P.L.233, No.64), known as 'The
Controlled Substance, Drug, Device and Cosmetic Act,' or
of an offense under the laws of another jurisdiction
which, if committed in this Commonwealth, would be a
felony under 'The Controlled Substance, Drug, Device and
Cosmetic Act,' unless:
(1) at least ten years have elapsed from the
date of conviction;
(2) the applicant satisfactorily demonstrates to
the board that he has made significant progress in
personal rehabilitation since the conviction such
that licensure of the applicant should not be
expected to create a substantial risk of harm to the
health and safety of patients or the public or a
substantial risk of further criminal violations; and
(3) the applicant otherwise satisfies the
qualifications contained in or authorized by this
act.
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As used in this subsection the term 'convicted' includes
a judgment, an admission of guilt or a plea of nolo
contendere."
(ix) Section 6(c) of the act of October 5, 1978
(P.L.1109, No.261), known as the Osteopathic Medical
Practice Act.
(x) Section 4(d) of the act of June 6, 1980
(P.L.197, No.57), known as the Optometric Practice and
Licensure Act.
(xi) The penultimate and last sentence of section
22(b) of the act of December 20, 1985 (P.L.457, No.112),
known as the Medical Practice Act of 1985, which read as
follows: "The board shall not issue a license or
certificate to an applicant who has been convicted of a
felony under the act of April 14, 1972 (P.L.233, No.64),
known as The Controlled Substance, Drug, Device and
Cosmetic Act, or of an offense under the laws of another
jurisdiction which, if committed in this Commonwealth,
would be a felony under The Controlled Substance, Drug,
Device and Cosmetic Act, unless:
(1) at least ten years have elapsed from the
date of conviction;
(2) the applicant satisfactorily demonstrates to
the board that he has made significant progress in
personal rehabilitation since the conviction such
that licensure of the applicant should not be
expected to create a substantial risk of harm to the
health and safety of his patients or the public or a
substantial risk of further criminal violations; and
(3) the applicant otherwise satisfies the
qualifications contained in or authorized by this
act.
As used in this section the term 'convicted' shall
include a judgment, an admission of guilt or a plea of
nolo contendere."
(xii) Section 501(a)(7) of the act of December 16,
1986 (P.L.1646, No.188), known as the Chiropractic
Practice Act.
(xiii) Section 7(a)(5), (d)(6), (e)(6), (f)(6) and
(g)(5) of the act of July 9, 1987 (P.L.220, No.39), known
as the Social Workers, Marriage and Family Therapists and
Professional Counselors Act.
(xiv) Section 502(c)(1) of the act of October 9,
2008 (P.L.1363, No.100), known as the Crane Operator
Licensure Act.
(xv) Section 5(a)(6) of the act of October 9, 2008
(P.L.1438, No.118), known as the Massage Therapy Law.
(xvi) The provision of any act that is inconsistent
with this act.
Amend Bill, page 5, line 16, by striking out "2" and
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inserting
3
Amend Bill, page 5, line 16, by striking out "60" and
inserting
90
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See A03516 in
the context
of SB0637