Chapter 5. - Title 2 - ADMINISTRATIVE LAW AND PROCEDURE

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CHAPTER 5

PRACTICE AND PROCEDURE

Subchapter

A. Practice and Procedure of Commonwealth Agencies

B. Practice and Procedure of Local Agencies

C. Administrative Proceeding Interpreters for Persons with Limited English Proficiency

D. Administrative Proceeding Interpreters for Persons Who Are Deaf

Enactment. Chapter 5 was added April 28, 1978, P.L.202, No.53, effective in 60 days.

Cross References. Chapter 5 is referred to in section 8533.1 of Title 24 (Education); sections 3370, 3370.1 of Title 75 (Vehicles).

SUBCHAPTER A

PRACTICE AND PROCEDURE OF

COMMONWEALTH AGENCIES

Sec.

501. Scope of subchapter.

502. Representation.

503. Discipline.

504. Hearing and record.

505. Evidence and cross-examination.

505.1. Interpreters for the deaf (Deleted by amendment).

506. Briefs and oral argument.

507. Contents and service of adjudications.

508. Notice to Department of Justice.

Cross References. Subchapter A is referred to in sections 103, 701, 704 of this title; sections 707, 1108.1, 1524, 1543, 2114, 2380.8, 2504, 6825, 6826, 6915, 6920, 7115, 9339 of Title 3 (Agriculture); sections 313, 328, 1518, 3304, 3905 of Title 4 (Amusements); sections 3507, 3517 of Title 5 (Athletics and Sports); section 6138 of Title 7 (Banks and Banking); section 6205 of Title 12 (Commerce and Trade); section 503 of Title 17 (Credit Unions); section 3022 of Title 18 (Crimes and Offenses); section 8617 of Title 20 (Decedents, Estates and Fiduciaries); section 5103 of Title 23 (Domestic Relations); section 8901 of Title 24 (Education); section 928 of Title 30 (Fish); sections 3705, 9506, 9702 of Title 40 (Insurance); section 762 of Title 42 (Judiciary and Judicial Procedure); section 323 of Title 57 (Notaries Public); section 3305 of Title 58 (Oil and Gas); sections 4506, 5904, 6137, 6139 of Title 61 (Prisons and Parole); section 13A02 of Title 65 (Public Officers); section 1102 of Title 67 (Public Welfare); section 5953.1 of Title 71 (State Government); sections 9104, 9303 of Title 74 (Transportation); sections 8510.4, 8520 of Title 75 (Vehicles).

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§ 501. Scope of subchapter.

(a) General rule.--Except as provided in subsection (b), this subchapter shall apply to all Commonwealth agencies.

(b) Exception.--None of the provisions of this subchapter shall apply to:

(1) Proceedings before the Department of Revenue, Auditor General or Board of Finance and Revenue, involving the original settlement, assessment or determination or resettlement, reassessment or redetermination, review or refund of taxes, interest or payments made into the Commonwealth treasury.

(2) Proceedings before the Secretary of the Commonwealth under the act of June 3, 1937 (P.L.1333, No.320), known as the Pennsylvania Election Code.

(3) Proceedings before the Department of Transportation involving matters reviewable under 42 Pa.C.S. § 933 (relating to appeals from government agencies).

(4) Proceedings before the State System of Higher Education involving student discipline.

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(Dec. 21, 1988, P.L.1895, No.186, eff. imd.)

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§ 502. Representation.

Any party may be represented before a Commonwealth agency.

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§ 503. Discipline.

Any Commonwealth agency may, upon hearing and good cause shown, preclude any person from practice before it.

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§ 504. Hearing and record.

No adjudication of a Commonwealth agency shall be valid as to any party unless he shall have been afforded reasonable notice of a hearing and an opportunity to be heard. All testimony shall be stenographically recorded and a full and complete record shall be kept of the proceedings.

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Cross References. Section 504 is referred to in section 9312 of Title 3 (Agriculture); sections 1205, 13A14 of Title 4 (Amusements).

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§ 505. Evidence and cross-examination.

Commonwealth agencies shall not be bound by technical rules of evidence at agency hearings, and all relevant evidence of reasonably probative value may be received. Reasonable examination and cross-examination shall be permitted.

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Cross References. Section 505 is referred to in section 9312 of Title 3 (Agriculture); sections 1205, 13A14 of Title 4 (Amusements).

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§ 505.1. Interpreters for the deaf (Deleted by amendment).

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2006 Amendment. Section 505.1 was deleted by amendment Nov. 29, 2006, P.L.1538, No.172, effective in 60 days.

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§ 506. Briefs and oral argument.

All parties shall be afforded opportunity to submit briefs prior to adjudication by a Commonwealth agency. Oral argument upon substantial issues may be heard by the agency.

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§ 507. Contents and service of adjudications.

All adjudications of a Commonwealth agency shall be in writing, shall contain findings and the reasons for the adjudication, and shall be served upon all parties or their counsel personally, or by mail.

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§ 508. Notice to Department of Justice.

Before notice of any hearing leading to an adjudication is given by a Commonwealth agency (except the Pennsylvania Public Utility Commission), the agency shall submit the matter to its representative in the Department of Justice who shall pass upon the legality of the proposed action or defense. Failure of the agency to submit the matter to the department shall not invalidate any adjudication.

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SUBCHAPTER B

PRACTICE AND PROCEDURE OF LOCAL AGENCIES

Sec.

551. Scope of subchapter.

552. Representation.

553. Hearing and record.

554. Evidence and cross-examination.

555. Contents and service of adjudications.

Cross References. Subchapter B is referred to in sections 105, 754 of this title; sections 6131, 8432, 8861 of Title 53 (Municipalities Generally); sections 3352, 7305 of Title 75 (Vehicles).

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§ 551. Scope of subchapter.

This subchapter shall apply to all local agencies.

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§ 552. Representation.

Any party may be represented before a local agency.

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§ 553. Hearing and record.

No adjudication of a local agency shall be valid as to any party unless he shall have been afforded reasonable notice of a hearing and an opportunity to be heard. All testimony may be stenographically recorded and a full and complete record may be kept of the proceedings. In the event all testimony is not stenographically recorded and a full and complete record of the proceedings is not provided by the local agency, such testimony shall be stenographically recorded and a full and complete record of the proceedings shall be kept at the request of any party agreeing to pay the costs thereof.

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Cross References. Section 553 is referred to in section 2304 of Title 68 (Real and Personal Property).

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§ 554. Evidence and cross-examination.

Local agencies shall not be bound by technical rules of evidence at agency hearings, and all relevant evidence of reasonably probative value may be received. Reasonable examination and cross-examination shall be permitted.

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§ 555. Contents and service of adjudications.

All adjudications of a local agency shall be in writing, shall contain findings and the reasons for the adjudication, and shall be served upon all parties or their counsel personally, or by mail.

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SUBCHAPTER C

ADMINISTRATIVE PROCEEDING INTERPRETERS

FOR PERSONS WITH LIMITED ENGLISH PROFICIENCY

Sec.

561. Scope of subchapter.

562. Duties of department.

563. Appointment of interpreter.

564. Replacement of interpreter.

565. Oath.

566. Confidential communications in presence of interpreter.

567. Cost of providing interpreter.

568. Funding.

Enactment. Subchapter C was added November 29, 2006, P.L.1538, No.72, effective in 60 days.

Cross References. Subchapter C is referred to in section 101 of this title.

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§ 561. Scope of subchapter.

(a) Commonwealth agencies.--Except as provided in subsection (b), this subchapter applies to all Commonwealth agencies.

(b) Exception.--This subchapter does not apply to:

(1) Proceedings before the Department of Revenue, the Department of the Auditor General or the Board of Finance and Revenue involving the original settlement, assessment or determination or resettlement, reassessment or redetermination, review or refund of taxes, interest or payments made into the State Treasury.

(2) Proceedings before the Secretary of the Commonwealth under the act of June 3, 1937 (P.L.1333, No.320), known as the Pennsylvania Election Code.

(3) Proceedings before the Department of Transportation involving matters reviewable under 42 Pa.C.S. § 933 (relating to appeals from government agencies).

(4) Proceedings before the State System of Higher Education involving student discipline.

(c) Local agencies.--This subchapter applies to all local agencies.

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§ 562. Duties of department.

(a) Interpreter program.--The department shall establish a program to appoint and use certified interpreters in administrative proceedings that is consistent with the program established by the Administrative Office of Pennsylvania Courts pursuant to 42 Pa.C.S. Ch. 44 (relating to court interpreters). As part of the program, the department may grant automatic certification to any interpreter that has been certified pursuant to 42 Pa.C.S. Ch. 44. To certify interpreters, the department may establish a program which may include:

(1) establishing and administering a comprehensive testing and certification program for interpreters;

(2) establishing and adopting standards of proficiency, written and oral, in English and the language to be interpreted, including, but not limited to, certification by the Court Administrator of Pennsylvania as provided in 42 Pa.C.S. Ch. 44;

(3) conducting periodic examinations to ensure the availability of certified interpreters pursuant to this subchapter;

(4) prescribing, determining and certifying the qualifications of persons who may serve as certified interpreters for persons with limited English proficiency;

(5) charging reasonable fees, as deemed necessary, for testing and certification;

(6) reciprocity of certification for interpreters from other jurisdictions, provided that, in the judgment of the department, the criteria for certification in the foreign jurisdiction is at least as stringent as that established by the department or the Court Administrator of Pennsylvania;

(7) providing for the audio recording of testimony that is the subject of interpretation; and

(8) providing a continuing education requirement for interpreters.

(b) List of certified interpreters.--The department shall compile, maintain and disseminate a current list of interpreters certified by the department to the agencies through any means deemed appropriate by the department, including, but not limited to, a written directory and publication on the official World Wide Web site of the department.

(c) Guidelines for selection of otherwise qualified interpreters.--The department shall provide guidelines to the agencies for the selection and use of otherwise qualified interpreters in order to ensure that the highest standards of accuracy are maintained in all administrative proceedings subject to this subchapter.

(d) Fee schedule.--The department shall prescribe, subject to periodic review, a schedule of reasonable fees for services rendered by certified interpreters and otherwise qualified interpreters.

(e) Standards of professional conduct.--

(1) The department shall establish and adopt standards for a code of professional conduct for administrative proceeding interpreters for persons with limited English proficiency.

(2) The department shall establish, administer or recommend a process to review and respond to allegations of violations of the code of professional conduct for administrative proceeding interpreters for persons with limited English proficiency, including, but not limited to, decertification and other disciplinary measures.

(f) Certification by courts.--Any interpreter certified by the Administrative Office of Pennsylvania Courts pursuant to 42 Pa.C.S. Ch. 44 shall be deemed certified pursuant to this chapter.

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§ 563. Appointment of interpreter.

(a) Appointment of certified interpreter.--Upon request or sua sponte, a presiding officer shall appoint a certified interpreter, unless a certified interpreter is unavailable as provided in subsection (b).

(b) Appointment of otherwise qualified interpreter when certified interpreter is unavailable.--

(1) An otherwise qualified interpreter shall be appointed by the presiding officer if a good faith effort was made to obtain a certified interpreter and a certified interpreter was not reasonably available, as determined by the presiding officer.

(2) Prior to the appointment of an otherwise qualified interpreter, the presiding officer shall state on the record that the otherwise qualified interpreter:

(i) is readily able to interpret; and

(ii) has read, understands and agrees to abide by the code of professional conduct for administrative proceeding interpreters for persons with limited English proficiency, as established by the department.

(c) Additional interpreters.--After consideration of the length of the administrative proceeding and the number of persons with limited English proficiency involved, a presiding officer may appoint, as provided in subsections (a) and (b), an additional interpreter or provide for additional interpretation in a manner deemed appropriate by the presiding officer.

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§ 564. Replacement of interpreter.

A presiding officer shall dismiss the interpreter and obtain the services of another interpreter in accordance with this subchapter if the interpreter:

(1) Fails to follow the standards prescribed by law or by the code of professional conduct for administrative proceeding interpreters for persons with limited English proficiency.

(2) Is unable to effectively communicate with the presiding officer or the person with limited English proficiency, including where the interpreter self-reports such inability.

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§ 565. Oath.

Before the commencement of interpreter duties, an interpreter appointed under this subchapter shall take an oath or make an affirmation on the record that the interpreter will make a true interpretation to the person with limited English proficiency in the language which the person with limited English proficiency understands and that the interpreter will repeat the statements of the person with limited English proficiency to the court in English to the best of the interpreter's skill and judgment and in accordance with the code of professional conduct for administrative proceeding interpreters for persons with limited English proficiency.

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§ 566. Confidential communications in presence of interpreter.

An interpreter appointed under this subchapter may not be compelled to testify, in any judicial proceeding or administrative proceeding, to statements made by the person with limited English proficiency and interpreted by the interpreter when the person with limited English proficiency is engaged in a confidential communication as provided by any statute or general rule, including, but not limited to:

(1) 42 Pa.C.S. § 5916 (relating to confidential communications to attorney).

(2) 42 Pa.C.S. § 5928 (relating to confidential communications to attorney).

(3) 42 Pa.C.S. § 5942 (relating to confidential communications to news reporters).

(4) 42 Pa.C.S. § 5943 (relating to confidential communications to clergymen).

(5) 42 Pa.C.S. § 5944 (relating to confidential communications to psychiatrists or licensed psychologists).

(6) 42 Pa.C.S. § 5945 (relating to confidential communications to school personnel).

(7) 42 Pa.C.S. § 5945.1 (relating to confidential communications with sexual assault counselors).

(8) 42 Pa.C.S. § 5945.2 (relating to confidential communications to crime stopper or similar anticrime program).

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§ 567. Cost of providing interpreter.

An interpreter appointed in accordance with this subchapter is entitled to a reasonable fee for interpreter services and shall be reimbursed for actual and reasonable expenses by the agency conducting the administrative proceeding.

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Cross References. Section 567 is referred to in section 568 of this title.

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§ 568. Funding.

Except as provided in section 567 (relating to cost of providing interpreter), the General Assembly shall appropriate to the department such sums as may be necessary to establish a program to facilitate the use of interpreters and otherwise fulfill the provisions of this subchapter. Implementation of this section is contingent upon the availability of appropriated funds to carry out the purposes of this section.

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SUBCHAPTER D

ADMINISTRATIVE PROCEEDING INTERPRETERS

FOR PERSONS WHO ARE DEAF

Sec.

581. Scope of subchapter.

582. Duties of department.

583. Appointment of interpreter.

584. Replacement of interpreter.

585. Oath.

586. Confidential communications in presence of interpreter.

587. Cost of providing interpreter.

588. Funding.

Enactment. Subchapter D was added November 29, 2006, P.L.1538, No.72, effective in 60 days.

Cross References. Subchapter D is referred to in section 101 of this title.

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§ 581. Scope of subchapter.

(a) Commonwealth agencies.--Except as provided in subsection (b), this subchapter applies to all Commonwealth agencies.

(b) Exception.--This subchapter does not apply to:

(2) Proceedings before the Secretary of the Commonwealth under the act of June 3, 1937 (P.L.1333, No.320), known as the Pennsylvania Election Code.

(3) Proceedings before the Department of Transportation involving matters reviewable under 42 Pa.C.S. § 933 (relating to appeals from government agencies).

(4) Proceedings before the State System of Higher Education involving student discipline.

(c) Local agencies.--This subchapter applies to all local agencies.

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§ 582. Duties of department.

(1) establishing and administering a comprehensive testing and certification program for interpreters pursuant to this subchapter;

(2) establishing and adopting standards of proficiency, including, but not limited to, certification by the Court Administrator of Pennsylvania as provided in 42 Pa.C.S. Ch. 44 and certification by the Registry for Interpreters for the Deaf or similar registry;

(3) conducting periodic examinations to ensure the availability of certified interpreters;

(4) prescribing, determining and certifying the qualifications of persons who may serve as certified interpreters;

(5) charging reasonable fees, as deemed necessary, for testing and certification;

(6) reciprocity of certification for interpreters from other jurisdictions, provided that, in the judgment of the department, the criteria for certification in the foreign jurisdiction is as least as stringent as that established by the department or the Court Administrator of Pennsylvania;

(7) providing for the audio recording of testimony that is the subject of interpretation; and

(8) providing a continuing education requirement for interpreters.

(d) Fee schedule.--The department shall prescribe, subject to periodic review, a schedule of reasonable fees for services rendered by certified interpreters and otherwise qualified interpreters.

(e) Standards of professional conduct.--

(1) The department shall establish and adopt standards for a code of professional conduct for administrative proceeding interpreters for persons who are deaf.

(2) The department shall establish, administer or recommend a process to review and respond to allegations of violations of the code of professional conduct for administrative proceeding interpreters for persons who are deaf, including, but not limited to, decertification and other disciplinary measures.

(f) Certification by courts.--Any interpreter certified by the Administrative Office of Pennsylvania Courts pursuant to 42 Pa.C.S. Ch. 44 shall be deemed certified pursuant to this chapter.

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§ 583. Appointment of interpreter.

(a) Appointment of certified interpreter.--Upon request, a presiding officer shall appoint a certified interpreter unless the certified interpreter is unavailable as provided in subsection (b).

(b) Appointment of otherwise qualified interpreter when certified interpreter is unavailable.--

(1) An otherwise qualified interpreter shall be appointed by a presiding officer if a good faith effort was made to obtain a certified interpreter and a certified interpreter was not reasonably available, as determined by the presiding officer.

(2) Prior to the appointment of an otherwise qualified interpreter, the presiding officer shall state on the record that to the best of the knowledge of the presiding officer, the otherwise qualified interpreter:

(i) is readily able to interpret;

(ii) is certified by the National Association for the Deaf, the Registry of Interpreters for the Deaf or similar registry, to the best of the knowledge of the presiding officer; and

(iii) has read, understands and agrees to abide by the code of professional conduct for administrative proceeding interpreters for persons who are deaf, as established by the department.

(c) Additional interpreters.--After consideration of the length of the administrative proceeding, the special needs of the person who is deaf and the number of persons involved who are deaf, the presiding officer may appoint, as provided in subsections (a) and (b), an additional interpreter or provide for additional interpretation in a manner deemed appropriate by the presiding officer.

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§ 584. Replacement of interpreter.

A presiding officer shall dismiss the interpreter and obtain the services of another interpreter in accordance with this subchapter if the interpreter:

(1) Fails to follow the standards prescribed by law or by the code of professional conduct for administrative proceeding interpreters for persons who are deaf.

(2) Is unable to effectively communicate with the presiding officer or person who is deaf, including where the interpreter self-reports such inability.

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§ 585. Oath.

Before the commencement of interpreter duties, an interpreter appointed under this subchapter shall take an oath or make an affirmation on the record that the interpreter will make a true interpretation to the person who is deaf in the manner that the person who is deaf understands and that the interpreter will repeat the statements of the person who is deaf to the court in the spoken English language to the best of the interpreter's skill and judgment and in accordance with the code of professional conduct for administrative proceeding interpreters for persons who are deaf.

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§ 586. Confidential communications in presence of interpreter.

An interpreter appointed under this subchapter may not be compelled to testify, in any judicial proceeding or administrative proceeding, to statements made by the person who is deaf and interpreted by the interpreter when the person who is deaf is engaged in a confidential communication as provided by any statute or general rule, including, but not limited to: