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A02143
THE GENERAL ASSEMBLY OF PENNSYLVANIA
SENATE BILL
No.
354
Session of
2017
INTRODUCED BY TOMLINSON, BOSCOLA, MENSCH, SCHWANK, HUGHES,
RAFFERTY, BROWNE AND SABATINA, FEBRUARY 15, 2017
SENATOR TOMLINSON, CONSUMER PROTECTION AND PROFESSIONAL
LICENSURE, AS AMENDED, APRIL 18, 2017
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; providing for
reporting of sanctions and criminal proceedings and for
temporary and automatic suspension; and further providing for
civil penalties.
The General Assembly of the Commonwealth of Pennsylvania
hereby enacts as follows:
Section 1. 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 by adding sections to read:
Section 1. Section 1 of the act of July 2, 1993 (P.L.345,
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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 by adding a definition 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:
* * *
"Expunge" or "expungement." Removal of a disciplinary
record, accomplished by:
(1) permanently sealing the affected record from public
access ;
(2) deeming the proceedings to which the affected record
refers as not having occurred ; and
(3) except with respect to any subsequent application
for expungement, affording the affected party the right to
represent that no record exists regarding the subject matter
of the affected record.
* * *
Section 2. The act is amended by adding sections to read:
Section 2.1. Reporting of sanctions and criminal proceedings.
(a) Duty.--An individual who holds a license, certificate or
registration issued by the Bureau of Professional and
Occupational Affairs shall, as a condition of licensure,
certification or registration, do all of the following:
(1) Report to the appropriate licensing board or
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licensing commission a disciplinary action taken against the
licensee, certificate holder or registrant by a licensing
agency of another jurisdiction.
(2) Report to the appropriate licensing board or
licensing commission an arrest, indictment or conviction of
the licensee, certificate holder or registrant.
(b) Time.--A report under subsection (a) shall be made as
follows:
(1) Within 30 days of the imposition of the sanction
described under subsection (a)(1).
(2) Except as set forth in paragraph (3), within 30 days
of the earlier of:
(i) an arrest under subsection (a)(2); or
(ii) an indictment under subsection (a)(2) . ; OR
(III) A CONVICTION UNDER SUBSECTION (A)(2).
(3) In the case of a criminal action under subsection
(a)(2) that is initiated prior to the effective date of this
paragraph, within 30 days from the later of:
(i) the date of conviction; or
(ii) the effective date of this paragraph.
(c) Sanctions.--A licensing board or licensing commission
shall take disciplinary action against a licensee, certificate
holder or registrant who violates this section.
Section 3.1. Temporary and automatic suspension.
(a) Temporary suspension.--A licensing board or licensing
commission may temporarily suspend a license, certificate or
registration under circumstances as determined by the board or
commission to be an immediate and clear danger to the public
health and safety. The board or commission shall issue an order
to that effect without a hearing, but upon due notice, to the
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licensee or , certificate holder OR REGISTRANT concerned at his
last known address, which shall include a written statement of
all allegations against the licensee or , certificate holder OR
REGISTRANT . After issuing the order, the board or commission
shall commence formal action to suspend, revoke or restrict the
license or , certificate OR REGISTRATION of the person concerned
as otherwise provided for by law. All actions shall be taken
promptly and without delay.
(b) Hearing.--Within 30 days following the issuance of an
order temporarily suspending a license, CERTIFICATE OR
REGISTRATION, the licensing board or licensing commission shall
conduct or cause to be conducted a preliminary hearing to
determine whether there is a prima facie case supporting the
suspension. The licensee or , certificate holder OR REGISTRANT
whose license or , certificate OR REGISTRATION has been
temporarily suspended may be present at the preliminary hearing
and may be represented by counsel, cross-examine witnesses,
inspect physical evidence, call witnesses, offer evidence and
testimony and make a record of the proceedings. If it is
determined that there is not a prima facie case, the suspended
license , CERTIFICATE OR REGISTRATION shall be immediately
restored. The temporary suspension shall remain in effect until
vacated by the board or commission, but in no event longer than
180 days.
(c) Automatic suspension.--A license or , certificate OR
REGISTRATION issued by a licensing board or licensing commission
shall automatically be suspended upon:
(1) the legal commitment to an institution of a licensee
or , certificate holder OR REGISTRANT because of mental
incompetency for any cause upon filing with the board or
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commission a certified copy of the commitment; or
(2) conviction 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 conviction 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.
(d) Stay.--Automatic suspension under subsection (c) shall
not be stayed pending an appeal of a conviction.
(e) Restoration.--Restoration of a license or , certificate
OR REGISTRATION shall be made as provided by law in the case of
revocation or suspension of the license or , certificate OR
REGISTRATION .
(f) Definition.--As used in this section, the term
"conviction" shall include a judgment, an admission of guilt or
a plea of nolo contendere.
Section 3. Section 5(a) of the act is amended to read:
Section 5. Civil penalties.
(a) Authorization.--
(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
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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, if the
imposition of discipline was for a violation involving
failure to complete continuing education requirements or
practicing for six months or less on a lapsed license,
registration, certificate or permit, subject to the
following:
(i) The licensee, registrant, certificate holder or
permit holder must make written application to the
commissioner for expungement not earlier than four years
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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) Disciplinary records involving imposition of
discipline for violations other than those identified in
this paragraph 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 2 4. This act shall take effect in 60 days.
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