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| PRIOR PRINTER'S NOS. 114, 193, 778 | PRINTER'S NO. 997 |
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| THE GENERAL ASSEMBLY OF PENNSYLVANIA |
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| SENATE BILL |
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| INTRODUCED BY TOMLINSON, RAFFERTY, O'PAKE, FERLO AND WASHINGTON, JANUARY 30, 2009 |
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| AS AMENDED ON SECOND CONSIDERATION, MAY 5, 2009 |
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| AN ACT |
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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," further providing for civil penalties; providing |
9 | for confidentiality of information; and making related |
10 | repeals. |
11 | The General Assembly of the Commonwealth of Pennsylvania |
12 | hereby enacts as follows: |
13 | Section 1. Section 5 of the act of July 2, 1993 (P.L.345, |
14 | No.48) entitled "An act empowering the General Counsel or his |
15 | designee to issue subpoenas for certain licensing board |
16 | activities; providing for hearing examiners in the Bureau of |
17 | Professional and Occupational Affairs; providing additional |
18 | powers to the Commissioner of Professional and Occupational |
19 | Affairs; and further providing for civil penalties and license |
20 | suspension," is amended to read: |
21 | Section 5. Civil penalties. |
22 | (a) Authorization.--The Commissioner of Professional and |
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1 | Occupational Affairs, after consultation with the licensing |
2 | boards and commissions, shall have the power to adopt a schedule |
3 | of civil penalties for operating without a current, registered, |
4 | unsuspended and unrevoked license, registration, certificate or |
5 | permit and for violating any provision of their respective acts |
6 | or regulations relating to the conduct or operation of a |
7 | business or facility licensed by such licensing boards and |
8 | commissions. The schedule of penalties shall not be applicable |
9 | to disciplinary matters under the jurisdiction of a licensing |
10 | board or commission unless that licensing board or commission |
11 | has approved the schedule. The schedule of penalties, guidelines |
12 | for their imposition and procedures for appeal shall be |
13 | published in the Pennsylvania Bulletin, provided that the |
14 | commissioner shall, within two years of such publication, |
15 | promulgate a regulation setting forth the schedule of penalties, |
16 | guidelines and procedures. Any such penalty shall not exceed the |
17 | sum of $1,000 per violation. Duly authorized agents of the |
18 | bureau shall have the power and authority to issue citations and |
19 | impose penalties for any such violations. Any such penalty |
20 | imposed may be appealed to a hearing examiner or the licensing |
21 | board or commission pursuant to the regulations promulgated |
22 | under section 3(b). If the appeal is initially to a hearing |
23 | examiner, the relevant licensing board or commission shall |
24 | render a decision on any exceptions to the decision of the |
25 | hearing examiner or on any applications for review in accordance |
26 | with section 3(d). All proceedings shall be conducted in |
27 | accordance with the provisions of 2 Pa.C.S. (relating to |
28 | administrative law and procedure). |
29 | (b) Additional powers.--In addition to the disciplinary |
30 | powers and duties of the boards and commissions within the |
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1 | Bureau of Professional and Occupational Affairs under their |
2 | respective practice acts, boards and commissions shall have the |
3 | power, respectively: |
4 | (1) To impose discipline, including, but not limited to, |
5 | a civil penalty of up to $10,000 per violation on any |
6 | licensee, registrant, certificate holder [or], permit holder |
7 | or unlicensed person who violates a lawful disciplinary order |
8 | of the board. |
9 | (2) To impose discipline, including, but not limited to, |
10 | a civil penalty of up to $10,000 per violation on any |
11 | licensee, registrant, certificate holder [or], permit holder |
12 | or unlicensed person who aids and abets the unlicensed |
13 | practice of a profession, occupation or business. |
14 | (3) To levy a civil penalty of not more than [$1,000] |
15 | $10,000 per violation on any corporation, partnership, |
16 | institution, association or sole proprietorship which aids |
17 | and abets any individual in the unlicensed practice of a |
18 | profession. This penalty shall not, however, be levied |
19 | against any person solely as a consequence of that person |
20 | being a patient or client of the unlicensed individual. |
21 | (4) To levy a civil penalty of not more than $10,000 per |
22 | violation on any licensee, registrant, certificate holder, |
23 | permit holder or unlicensed person who violates any provision |
24 | of the applicable licensing act or board regulation. |
25 | (5) To assess against the respondent determined to be in |
26 | violation of the disciplinary provisions administered by a |
27 | licensing board or commission in a disciplinary proceeding |
28 | pending before the board or commission for final |
29 | determination, as part of the sanction, the costs of |
30 | investigation underlying that disciplinary action. The cost |
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1 | of investigation shall not include any associated legal fees | <-- |
2 | or any cost of prosecution those costs incurred by the board | <-- |
3 | or commission after the filing of formal actions or |
4 | disciplinary charges against the respondent. |
5 | (c) Restrictions.--Any decisions rendered by a licensing |
6 | board or commission on any exceptions to the decision of a |
7 | hearing examiner or on any application for review in accordance |
8 | with section 3(d) to impose a civil penalty pursuant to this |
9 | section shall require the same number of votes required for the |
10 | licensing board or commission to impose a civil penalty under |
11 | any other act. Nothing in this section shall be construed to |
12 | restrict the powers and duties under any other act of a |
13 | licensing board or commission in disciplinary matters, except |
14 | that a licensing board or commission may not impose a civil |
15 | penalty under any other act for the same violation for which a |
16 | civil penalty has been imposed pursuant to this section. |
17 | (d) Status of civil penalty.--Any civil penalty imposed |
18 | pursuant to this section or imposed by any licensing board or |
19 | commission under any other act shall be a judgment in favor of |
20 | the Bureau of Professional and Occupational Affairs upon the |
21 | person or the property of the person upon whom the civil penalty |
22 | is imposed. The Attorney General shall be responsible for |
23 | enforcing such judgments in courts of competent jurisdiction in |
24 | accordance with the provisions of 42 Pa.C.S. (relating to |
25 | judiciary and judicial procedure). |
26 | (e) Definition.--As used in this section, the term |
27 | "unlicensed practice" means: |
28 | (1) practicing a profession or occupation or operating a |
29 | business for which a license, registration, certificate or |
30 | permit is required without holding a valid, unexpired, |
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1 | unrevoked or unsuspended authority to do so; or |
2 | (2) representing to the public or any person, through |
3 | offerings, advertisements or the use of a title, that the |
4 | individual is qualified to practice a profession, occupation |
5 | or business for which a license, registration, certificate or |
6 | permit is required without holding a valid, unexpired, |
7 | unrevoked or unsuspended authority to do so. |
8 | Section 2. The act is amended by adding a section to read: |
9 | Section 5.1. Confidentiality of records of licensure boards. |
10 | (a) General rule.--All documents, materials or information | <-- |
11 | utilized for an investigation records under section 708(b)(17) | <-- |
12 | of the act of February 14, 2008 (P.L.6, No.3), known as the |
13 | Right-to-Know Law, relating to a noncriminal investigation, |
14 | including prosecutorial memos and transcripts of depositions, |
15 | undertaken by the Bureau of Enforcement and Investigation and |
16 | the Prosecution Division of the Department of State, Office of |
17 | Chief Counsel on behalf of the licensing boards within the |
18 | Department of State or concerning a licensure-related complaint |
19 | filed with the department shall be confidential and privileged. |
20 | No person who has investigated or has access to or custody of |
21 | documents, materials or information which are confidential and |
22 | privileged under this subsection shall be required to testify in |
23 | any judicial or administrative proceeding unless directed to do | <-- |
24 | so by a court of competent jurisdiction without the written |
25 | consent of the licensing board which regulates the profession |
26 | involved. This subsection shall not preclude or limit |
27 | introduction of the contents of an investigative file or related |
28 | witness testimony in a hearing or proceeding held before the |
29 | licensing boards within the Department of State. This subsection | <-- |
30 | section shall not apply to letters to a licensee or other | <-- |
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1 | documents that disclose the final outcome of an investigation or |
2 | to final adjudication or orders issued by the licensure board. |
3 | (b) Certain disclosure permitted.--Except as provided under |
4 | subsection (a), this section shall not prevent disclosure of any |
5 | documents, materials or information pertaining to the status of |
6 | a license, permit or certificate issued or prepared by the |
7 | licensing boards, the sharing of information with law |
8 | enforcement authorities or professional licensure regulatory |
9 | boards in other jurisdictions, or information relating to a |
10 | public disciplinary proceeding or hearing. Any other disclosure |
11 | of documents, materials or information by employees or agents of | <-- |
12 | of records under section 708(b)(17) of the Right-to-Know Law | <-- |
13 | relating to a noncriminal investigation, including prosecutorial |
14 | memos and transcripts of depositions by employees or agents of |
15 | the Department of State, Office of Chief Counsel, Bureau of |
16 | Professional and Occupational Affairs and the Bureau of |
17 | Enforcement and Investigation may be made only in furtherance of |
18 | an investigation or prosecution of alleged violations of |
19 | applicable licensing statutes, codes or regulations. Violations |
20 | of the confidentiality and disclosure sections this subsection | <-- |
21 | shall subject the employee or agent to administrative |
22 | discipline, including discharge, suspension or other formal or |
23 | appropriate disciplinary action. |
24 | (c) Confidentiality affidavits.--All employees and agents of |
25 | the Department of State Office of Chief Counsel, Bureau of |
26 | Professional and Occupational Affairs and the Bureau of |
27 | Enforcement and Investigation shall execute a confidentiality |
28 | affidavit which provides that documents, materials or |
29 | information under subsection (a), obtained by employees and |
30 | agents of the Department of State, Office of Chief Counsel, |
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1 | Bureau of Professional and Occupational Affairs and the Bureau |
2 | of Enforcement and Investigation shall be considered |
3 | confidential and may be disclosed only as permitted under |
4 | subsections (a) and (b). |
5 | (d) Waiver prohibited.--A licensing board or commission may |
6 | not require an applicant to waive any confidentiality provided |
7 | for under this section as a condition for the approval of a |
8 | license or any other action of the board. |
9 | Section 3. The following provisions are repealed insofar as |
10 | they are inconsistent with the amendment of section 5 of the |
11 | act: |
12 | (1) Section 15(b.3) of the act of June 19, 1931 (P.L. |
13 | 589, No.202), referred to as the Barbers' License Law. |
14 | (2) Section 10.1 of the act of May 1, 1933 (P.L.216, No. |
15 | 76), known as The Dental Law. |
16 | (3) Section 20(c.2) of the act of May 3, 1933 (P.L.242, |
17 | No.86), referred to as the Cosmetology Law. |
18 | (4) Section 11(b) of the act of May 23, 1945 (P.L.913, |
19 | No.367), known as the Engineer, Land Surveyor and Geologist |
20 | Registration Law. |
21 | (5) Section 16(c) of the act of May 26, 1947 (P.L.318, |
22 | No.140), known as the CPA Law. |
23 | (6) Section 13(b) of the act of May 22, 1951 (P.L.317, |
24 | No.69), known as The Professional Nursing Law. |
25 | (7) Section 17(b) of the act of January 14, 1952 (1951 |
26 | P.L.1898, No.522), known as the Funeral Director Law. |
27 | (8) Section 13(b) of the act of March 2, 1956 (1955 P.L. |
28 | 1206, No.375), known as the Podiatry Practice Act. |
29 | (9) Section 15(b) of the act of March 2, 1956 (1955 P.L. |
30 | 1211, No.376), known as the Practical Nurse Law. |
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1 | (10) Section 8(15.1) of the act of September 27, 1961 |
2 | (P.L.1700, No.699), known as the Pharmacy Act. |
3 | (11) Section 11(b) of the act of January 24, 1966 (1965 |
4 | P.L.1527, No.535), known as the Landscape Architects' |
5 | Registration Law. |
6 | (12) Section 11(b) of the act of June 22, 1970 (P.L.378, |
7 | No.122), known as the Nursing Home Administrators License |
8 | Act. |
9 | (13) Section 11(b) of the act of March 23, 1972 (P.L. |
10 | 136, No.52), known as the Professional Psychologists Practice |
11 | Act. |
12 | (14) Section 28(c) of the act of December 27, 1974 (P.L. |
13 | 995, No.326), known as the Veterinary Medicine Practice Act. |
14 | (15) Section 12(c) of the act of October 10, 1975 (P.L. |
15 | 383, No.110), known as the Physical Therapy Practice Act. |
16 | (16) Section 305 of the act of February 19, 1980 (P.L. |
17 | 15, No.9), known as the Real Estate Licensing and |
18 | Registration Act. |
19 | (17) Section 8(c) of the act of June 6, 1980 (P.L.197, |
20 | No.57), known as the Optometric Practice and Licensure Act. |
21 | (18) Section 20(d) of the act of December 14, 1982 (P.L. |
22 | 1227, No.281), known as the Architects Licensure Law. |
23 | (19) Section 28(c) of the act of December 22, 1983 (P.L. |
24 | 306, No.84), known as the Board of Vehicles Act. |
25 | (20) Section 29(b) of the act of December 22, 1983 (P.L. |
26 | 327, No.85), known as the Auctioneer and Auction Licensing |
27 | Act. |
28 | (21) Section 703 of the act of December 16, 1986 (P.L. |
29 | 1646, No.188), known as the Chiropractic Practice Act. |
30 | (22) Section 17(b) of the act of July 9, 1987 (P.L.220, |
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1 | No.39), known as the Social Workers, Marriage and Family |
2 | Therapists and Professional Counselors Act. |
3 | (23) Section 15(b) of the act of July 10, 1990 (P.L.404, |
4 | No.98), known as the Real Estate Appraisers Certification |
5 | Act. |
6 | (24) Section 908 of the act of March 20, 2002 (P.L.154, |
7 | No.13), known as the Medical Care Availability and Reduction |
8 | of Error (Mcare) Act. |
9 | (25) Section 15 of the act of October 9, 2008 (P.L. |
10 | 1438, No. 118), known as the Massage Therapy Law. |
11 | (26) Section 702 of the act of October 9, 2008 (P.L. |
12 | 1363, No. 100), known as the Crane Operator Licensure Act. |
13 | Section 4. This act shall apply to violations which take |
14 | place on or after the effective date of this section. |
15 | Section 5. This act shall take effect in 60 days. |
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