THE GENERAL ASSEMBLY OF PENNSYLVANIA

HOUSE BILL

INTRODUCED BY HARPER, THOMAS, BARRAR, COHEN, DAVIDSON, FLECK, FRANKEL, GINGRICH, GRELL, HESS, KORTZ, MICOZZIE, MILNE, READSHAW, WAGNER, SANTARSIERO, GEORGE AND MAHER, FEBRUARY 14, 2011

AS REPORTED FROM COMMITTEE ON PROFESSIONAL LICENSURE, HOUSE OF REPRESENTATIVES, AS AMENDED, MAY 9, 2012   

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 definitions and for civil

penalties.

The General Assembly of the Commonwealth of Pennsylvania

hereby enacts as follows:

Section 1.  Section 1 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 1.  Definitions.

The following words and phrases when used in this act shall

have the meanings given to them in this section unless the

context clearly indicates otherwise:

"Disciplinary matter."  Any matter subject to a licensing

board's or commission's jurisdiction in which the licensing

board or commission has the authority to refuse, suspend, revoke

or limit a license, registration, certificate or permit or to

impose a civil penalty or other discipline under any act.

"Expunge" or "expungement."  Removal of a disciplinary

record, accomplished by:

(1)  Permanently permanently sealing the affected record

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from public access.;

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(2)  Deeming deeming the proceedings to which the

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affected record refers as not having occurred.; and

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(3)  Except except with respect to any subsequent

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application for expungement, affording the affected party the

right to represent that no record exists regarding the

subject matter of the affected record.

"Licensing boards."  Those departmental or administrative

boards under the Bureau of Professional and Occupational Affairs

in the Department of State.

"Licensing commissions."  Those departmental or

administrative commissions under the Bureau of Professional and

Occupational Affairs in the Department of State.

Section 2.  Section 5(b) 5(a) of the act is amended by adding

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a paragraph to read:

Section 5.  Civil penalties.

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(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:

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(6)  To expunge a disciplinary record of a certificate

holder, registrant or licensee subject to the following

conditions:

(i)  The certificate holder, registrant or licensee

must make written application to the board for expungment

no earlier than four years from the effective date of the

disciplinary record.

(ii)  The disciplinary record must be the only

disciplinary record that the certificate holder,

registrant or licensee has with the board.

(iii)  The certificate holder, registrant or licensee

must not have had a disciplinary record previously

expunged by the board.

(iv)  The disciplinary record must have involved

either the imposition of a civil penalty against the

certificate holder, registrant or licensee for a

violation under subsection (a) or the imposition of

discipline against the certificate holder, registrant or

licensee for a violation that, at the time of application

for expungement, would be prosecuted under subsection

(a).

(a)  Authorization.--

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(1)  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).

(2)  The Commissioner of Professional and Occupational

Affairs shall expunge the disciplinary record of a licensee,

registrant, certificate holder or permit holder subject to

the following conditions:

(i)  The licensee, registrant, certificate holder or

permit holder must make written application to the

commissioner for expungement not earlier than four years

from the final disposition of the disciplinary record.

(ii)  The disciplinary record must be the only

disciplinary record that the licensee, registrant,

certificate holder or permit holder has with either the

commissioner or a licensing board or commission under the

commissioner's jurisdiction.

(iii)  The licensee, registrant, certificate holder

or permit holder must not be the subject of an active

investigation related to professional or occupational

conduct.

(iv)  The licensee, registrant, certificate holder or

permit holder must not be in a current disciplinary

status, and any fees or fines assessed must be paid in

full.

(v)  The licensee, registrant, certificate holder or

permit holder must not have had a disciplinary record

previously expunged by the commissioner.

(vi)  The imposition of discipline must have been for

a violation involving:

(A)  Failure to complete continuing education

requirements or practicing for six months or less on

a lapsed license, registration, certificate or

permit. At least four years must have elapsed since

the final disposition of the disciplinary record at

the time of application for expungement.

(B)  Any violation, except those which resulted

in license suspension or revocation, in which at

least ten years have elapsed since the final

disposition of the disciplinary record at the time of

application for expungement.

Disciplinary records involving imposition of discipline

for violations other than those identified in clauses (A)

and (B) shall not be eligible for expungement.

(vii)  The licensee, registrant, certificate holder

or permit holder shall pay all costs associated with the

expungement as established by the commissioner by

regulation.

(3)  Nothing in this subsection shall prohibit a

licensing board or commission from using a previous

discipline for any regulatory purpose or from releasing

records of a previous discipline upon request from law

enforcement or other governmental body as permitted by law.

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Section 3.  This act shall take effect in 60 days.