THE GENERAL ASSEMBLY OF PENNSYLVANIA

SENATE BILL

INTRODUCED BY TOMLINSON, RAFFERTY, O'PAKE AND FERLO, JANUARY 30, 2009

SENATOR CORMAN, APPROPRIATIONS, RE-REPORTED AS AMENDED,

  MARCH 30, 2009   

AN ACT

Amending the act of July 2, 1993 (P.L.345, No.48), entitled "An

act empowering the General Counsel or his designee to issue

subpoenas for certain licensing board activities; providing

for hearing examiners in the Bureau of Professional and

Occupational Affairs; providing additional powers to the

Commissioner of Professional and Occupational Affairs; and

further providing for civil penalties and license

suspension," further providing for civil penalties; providing

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for confidentiality of information; and making related

repeals.

The General Assembly of the Commonwealth of Pennsylvania

hereby enacts as follows:

Section 1.  Section 5 of the act of July 2, 1993 (P.L.345,

No.48) entitled "An act empowering the General Counsel or his

designee to issue subpoenas for certain licensing board

activities; providing for hearing examiners in the Bureau of

Professional and Occupational Affairs; providing additional

powers to the Commissioner of Professional and Occupational

Affairs; and further providing for civil penalties and license

suspension," is amended to read:

Section 5.  Civil penalties.

(a)  Authorization.--The Commissioner of Professional and

Occupational Affairs, after consultation with the licensing

boards and commissions, shall have the power to adopt a schedule

of civil penalties for operating without a current, registered,

unsuspended and unrevoked license, registration, certificate or

permit and for violating any provision of their respective acts

or regulations relating to the conduct or operation of a

business or facility licensed by such licensing boards and

commissions. The schedule of penalties shall not be applicable

to disciplinary matters under the jurisdiction of a licensing

board or commission unless that licensing board or commission

has approved the schedule. The schedule of penalties, guidelines

for their imposition and procedures for appeal shall be

published in the Pennsylvania Bulletin, provided that the

commissioner shall, within two years of such publication,

promulgate a regulation setting forth the schedule of penalties,

guidelines and procedures. Any such penalty shall not exceed the

sum of $1,000 per violation. Duly authorized agents of the

bureau shall have the power and authority to issue citations and

impose penalties for any such violations. Any such penalty

imposed may be appealed to a hearing examiner or the licensing

board or commission pursuant to the regulations promulgated

under section 3(b). If the appeal is initially to a hearing

examiner, the relevant licensing board or commission shall

render a decision on any exceptions to the decision of the

hearing examiner or on any applications for review in accordance

with section 3(d). All proceedings shall be conducted in

accordance with the provisions of 2 Pa.C.S. (relating to

administrative law and procedure).

(b)  Additional powers.--In addition to the disciplinary

powers and duties of the boards and commissions within the

Bureau of Professional and Occupational Affairs under their

respective practice acts, boards and commissions shall have the

power, respectively:

(1)  To impose discipline, including, but not limited to,

a civil penalty of up to $10,000 per violation on any

licensee, registrant, certificate holder [or], permit holder

or unlicensed person who violates a lawful disciplinary order

of the board.

(2)  To impose discipline, including, but not limited to,

a civil penalty of up to $10,000 per violation on any

licensee, registrant, certificate holder [or], permit holder

or unlicensed person who aids and abets the unlicensed

practice of a profession, occupation or business.

(3)  To levy a civil penalty of not more than [$1,000] 

$10,000 per violation on any corporation, partnership,

institution, association or sole proprietorship which aids

and abets any individual in the unlicensed practice of a

profession. This penalty shall not, however, be levied

against any person solely as a consequence of that person

being a patient or client of the unlicensed individual.

(4)  To levy a civil penalty of not more than $10,000 per

violation on any licensee, registrant, certificate holder,

permit holder or unlicensed person who violates any provision

of the applicable licensing act or board regulation.

(5)  To assess against the respondent determined to be in

violation of the disciplinary provisions administered by a

licensing board or commission in a disciplinary proceeding

pending before the board or commission for final

determination, as part of the sanction, the costs of

investigation underlying that disciplinary action. The cost

of investigation shall not include any associated legal fees

or any cost of prosecution.

(c)  Restrictions.--Any decisions rendered by a licensing

board or commission on any exceptions to the decision of a

hearing examiner or on any application for review in accordance

with section 3(d) to impose a civil penalty pursuant to this

section shall require the same number of votes required for the

licensing board or commission to impose a civil penalty under

any other act. Nothing in this section shall be construed to

restrict the powers and duties under any other act of a

licensing board or commission in disciplinary matters, except

that a licensing board or commission may not impose a civil

penalty under any other act for the same violation for which a

civil penalty has been imposed pursuant to this section.

(d)  Status of civil penalty.--Any civil penalty imposed

pursuant to this section or imposed by any licensing board or

commission under any other act shall be a judgment in favor of

the Bureau of Professional and Occupational Affairs upon the

person or the property of the person upon whom the civil penalty

is imposed. The Attorney General shall be responsible for

enforcing such judgments in courts of competent jurisdiction in

accordance with the provisions of 42 Pa.C.S. (relating to

judiciary and judicial procedure).

(e)  Definition.--As used in this section, the term

"unlicensed practice" means:

(1)  practicing a profession or occupation or operating a

business for which a license, registration, certificate or

permit is required without holding a valid, unexpired,

unrevoked or unsuspended authority to do so; or

(2)  representing to the public or any person, through

offerings, advertisements or the use of a title, that the

individual is qualified to practice a profession, occupation

or business for which a license, registration, certificate or

permit is required without holding a valid, unexpired,

unrevoked or unsuspended authority to do so.

Section 2.  The act is amended by adding a section to read:

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Section 5.1.  Confidentiality of records of licensure boards.

(a)  General rule.--All documents, materials or information

utilized for an investigation undertaken by the Bureau of

Enforcement and Investigation and the Prosecution Division of

the Department of State, Office of Chief Counsel on behalf of

the licensing boards within the Department of State or

concerning a licensure-related complaint filed with the

department shall be confidential and privileged. No person who

has investigated or has access to or custody of documents,

materials or information which are confidential and privileged

under this subsection shall be required to testify in any

judicial or administrative proceeding without the written

consent of the licensing board which regulates the profession

involved. This subsection shall not preclude or limit

introduction of the contents of an investigative file or related

witness testimony in a hearing or proceeding held before the

licensing boards within the Department of State. This subsection

shall not apply to letters to a licensee that disclose the final

outcome of an investigation or to final adjudication or orders

issued by the licensure board.

(b)  Certain disclosure permitted.--Except as provided under

subsection (a), this section shall not prevent disclosure of any

documents, materials or information pertaining to the status of

a license, permit or certificate issued or prepared by the

licensing boards, the sharing of information with law

enforcement authorities or professional licensure regulatory

boards in other jurisdictions, or information relating to a

public disciplinary proceeding or hearing. Any other disclosure

of documents, materials or information by employees or agents of

the Department of State, Office of Chief Counsel, Bureau of

Professional and Occupational Affairs and the Bureau of

Enforcement and Investigation may be made only in furtherance of

an investigation or prosecution of alleged violations of

applicable licensing statutes, codes or regulations. Violations

of the confidentiality and disclosure sections shall subject the

employee or agent to administrative discipline, including

discharge, suspension or other formal or appropriate

disciplinary action.

(c)  Confidentiality affidavits.--All employees and agents of

the Department of State Office of Chief Counsel, Bureau of

Professional and Occupational Affairs and the Bureau of

Enforcement and Investigation shall execute a confidentiality

affidavit which provides that documents, materials or

information under subsection (a), obtained by employees and

agents of the Department of State, Office of Chief Counsel,

Bureau of Professional and Occupational Affairs and the Bureau

of Enforcement and Investigation shall be considered

confidential and may be disclosed only as permitted under

subsections (a) and (b).

(d)  Waiver prohibited.--A licensing board or commission may

not require an applicant to waive any confidentiality provided

for under this section as a condition for the approval of a

license or any other action of the board.

Section 23.  The following provisions are repealed insofar as

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they are inconsistent with the amendment of section 5 of the

act:

(1)  Section 15(b.3) of the act of June 19, 1931 (P.L.

589, No.202), referred to as the Barbers' License Law.

(2)  Section 10.1 of the act of May 1, 1933 (P.L.216, No.

76), known as The Dental Law.

(3)  Section 20(c.2) of the act of May 3, 1933 (P.L.242,

No.86), referred to as the Cosmetology Law.

(4)  Section 11(b) of the act of May 23, 1945 (P.L.913,

No.367), known as the Engineer, Land Surveyor and Geologist

Registration Law.

(5)  Section 16(c) of the act of May 26, 1947 (P.L.318,

No.140), known as the CPA Law.

(6)  Section 13(b) of the act of May 22, 1951 (P.L.317,

No.69), known as The Professional Nursing Law.

(7)  Section 17(b) of the act of January 14, 1952 (1951

P.L.1898, No.522), known as the Funeral Director Law.

(8)  Section 13(b) of the act of March 2, 1956 (1955 P.L.

1206, No.375), known as the Podiatry Practice Act.

(9)  Section 15(b) of the act of March 2, 1956 (1955 P.L.

1211, No.376), known as the Practical Nurse Law.

(10)  Section 8(15.1) of the act of September 27, 1961

(P.L.1700, No.699), known as the Pharmacy Act.

(11)  Section 11(b) of the act of January 24, 1966 (1965

P.L.1527, No.535), known as the Landscape Architects'

Registration Law.

(12)  Section 11(b) of the act of June 22, 1970 (P.L.378,

No.122), known as the Nursing Home Administrators License

Act.

(13)  Section 11(b) of the act of March 23, 1972 (P.L.

136, No.52), known as the Professional Psychologists Practice

Act.

(14)  Section 28(c) of the act of December 27, 1974 (P.L.

995, No.326), known as the Veterinary Medicine Practice Act.

(15)  Section 12(c) of the act of October 10, 1975 (P.L.

383, No.110), known as the Physical Therapy Practice Act.

(16)  Section 305 of the act of February 19, 1980 (P.L.

15, No.9), known as the Real Estate Licensing and

Registration Act.

(17)  Section 8(c) of the act of June 6, 1980 (P.L.197,

No.57), known as the Optometric Practice and Licensure Act.

(18)  Section 20(d) of the act of December 14, 1982 (P.L.

1227, No.281), known as the Architects Licensure Law.

(19)  Section 28(c) of the act of December 22, 1983 (P.L.

306, No.84), known as the Board of Vehicles Act.

(20)  Section 29(b) of the act of December 22, 1983 (P.L.

327, No.85), known as the Auctioneer and Auction Licensing

Act.

(21)  Section 703 of the act of December 16, 1986 (P.L.

1646, No.188), known as the Chiropractic Practice Act.

(22)  Section 17(b) 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.

(23)  Section 15(b) of the act of July 10, 1990 (P.L.404,

No.98), known as the Real Estate Appraisers Certification

Act.

(24)  Section 908 of the act of March 20, 2002 (P.L.154,

No.13), known as the Medical Care Availability and Reduction

of Error (Mcare) Act.

(25)  Section 15 of the act of October 9, 2008 (P.L.

1438, No. 118), known as the Massage Therapy Law.

(26)  Section 702 of the act of October 9, 2008 (P.L.

1363, No. 100), known as the Crane Operator Licensure Act.

Section 34.  This act shall apply to violations which take

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place on or after the effective date of this section.

Section 45.  This act shall take effect in 60 days.

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