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PA Bulletin, Doc. No. 04-609

PROPOSED RULEMAKING

STATE BOARD
OF MEDICINE

[49 PA. CODE CH. 16]

Disciplinary Process and Procedure

[34 Pa.B. 1963]

   The State Board of Medicine (Board) proposes to amend § 16.51 (relating to creation of list of hearing examiners) and add §§ 16.55--16.58 to read as set forth in Annex A.

A.  Effective Date

   The proposed rulemaking will be effective upon final-form publication in the Pennsylvania Bulletin.

B.  Statutory Authority

   Sections 8 and 9 of the Medical Practice Act of 1985 (act) (63 P. S. §§ 422.8 and 422.9) authorize the Board to promulgate regulations addressing procedures to be followed in proceedings before it consistent with the requirements of section 9 of the act.

C.  Background and Purpose

   The proposed rulemaking will codify the process and procedures that are currently followed in disciplinary matters before the Board. These procedures are derived from sections 901--905 of the Health Care Services Malpractice Act (formerly 40 P. S. §§ 1301.901--1301.905). On March 20, 2002, the Governor signed into law the Medical Care Availability and Reduction of Error Act (MCARE Act) (40 P. S. §§ 1303.101--1303.910). Section 5104 of the MCARE Act (40 P. S. § 1303.) repealed 40 P. S. §§ 1301.901--1301.905. It is not clear what, if any, impact the repealer provisions have on the procedures followed by the Board. Because the Board's procedures have been effective, the Board has determined that codifying the process will maintain the status quo and avoid unnecessary and unintended confusion.

D.  Description of the Proposed Rulemaking

   Section 16.51 is amended to more accurately reflect that, consistent with the Commonwealth Attorneys Act (71 P. S. §§ 732-101--732-506), attorneys, including hearing examiners, are assigned to agencies through the Office of General Counsel. The proposed rulemaking also provides for the Board's current process that, absent an order of the Board otherwise, all matters would be heard by the Board's hearing examiner.

   Section 16.55 (relating to complaint process) is added to provide a description of the complaint process. Section 16.55(a) provides that a written complaint may be submitted to the complaints office. Section 16.55(b)--(d) describes the internal processing of complaints. Specifically, in keeping with the decision in Lyness v. State Board of Medicine, 605 A.2d 1204 (Pa. 1992), the Board prosecutor will cause to be conducted reasonable inquiry and will determine whether to initiate the filing of formal charges. Consistent with section 907 of the MCARE Act (40 P. S. § 1303.907), § 16.55(c) reiterates that documents, materials or information obtained during the course of an investigation shall be confidential and privileged unless admitted as evidence during the course of a formal disciplinary proceeding. Section 16.55(d) provides for the Board prosecutor to enter negotiations to settle the case by consent agreement.

   Section 16.56 (relating to formal hearings open to public) provides for formal hearings to be open to the public.

   Section 16.57 (relating to appeal from the hearing examiner's decision) provides for review of the hearing examiner's decision by the Board on the request of either party or on the Board's own motion. Section 16.57(b) provides that, unless otherwise ordered by the Board, neither the filing of an application for review nor the Board's own notice of intent to review would stay the hearing examiner's decision.

   Section 16.58 (relating to appeal from the Board decision) provides for review of the Board's decision under 2 Pa.C.S. § 702 (relating to appeals).

E.  Fiscal Impact and Paperwork Requirements

   There is no adverse fiscal impact or paperwork requirement imposed on the Commonwealth, political subdivisions or the private sector.

F.  Sunset Date

   The Board continuously monitors its regulations. Therefore, no sunset date has been assigned.

G.  Regulatory Review

   Under section 5(a) of the Regulatory Review Act (71 P. S. § 745.5(a)), on March 30, 2004, the Board submitted a copy of this proposed rulemaking and a copy of a Regulatory Analysis Form to the Independent Regulatory Review Commission (IRRC) and to the Chairpersons of the House Professional Licensure Committee and the Senate Consumer Protection and Professional Licensure Committee. A copy of this material is available to the public upon request.

   Under section 5(g) of the Regulatory Review Act, IRRC may convey any comments, recommendations or objections to the proposed rulemaking within 30 days of the close of the public comment period. The comments, recommendations or objections shall specify the regulatory review criteria which have not been met. The Regulatory Review Act specifies detailed procedures for review, prior to final publication of the rulemaking, by the Board, the General Assembly and the Governor of comments, recommendations or objections raised.

H.  Public Comment

   Interested persons are invited to submit written comments, recommendations or objections regarding the proposed rulemaking to Joanne Troutman, Health Licensing Division, Bureau of Professional and Occupational Affairs, P. O. Box 2649, Harrisburg, PA 17105-2649 within 30 days following publication in the Pennsylvania Bulletin. Refer to ''disciplinary procedures'' when submitting comments.

CHARLES D. HUMMER, Jr., M.D.,   
Chairperson

   Fiscal Note:  16A-4918. No fiscal impact; (8) recommends adoption.

Annex A

TITLE 49.  PROFESSIONAL AND VOCATIONAL STANDARDS

PART I.  DEPARTMENT OF STATE

Subpart A.  PROFESSIONAL AND OCCUPATIONAL AFFAIRS

CHAPTER 16.  STATE BOARD OF MEDICINE--GENERAL PROVISIONS

Subchapter E.  MEDICAL DISCIPLINARY PROCESS AND PROCEDURES

HEARING EXAMINERS AND MEDICAL CONSULTANTS

§ 16.51.  [Creation of list of hearing] Hearing examiners.

   [As provided under section 902 of the Health Care Services Malpractice Act (40 P. S. § 1301.902), the Board has created a list of individuals with the approval of the Governor from which hearing examiners can be selected to serve on a part-time basis in order to hear formal hearings and render adjudications.] Hearing examiners are appointed by the Governor's Office of General Counsel to hear matters before the Board. Unless otherwise ordered by the Board, all disciplinary matters shall be heard by a hearing examiner.

§ 16.55.  Complaint process.

   (a)  A person, firm, corporation or public officer may submit a written complaint to the complaints office alleging a violation of the act or this chapter or Chapters 17 or 18 (relating to State Board of Medicine--medical doctors; and State Board of Medicine--practitioners other than medical doctors), specifying the grounds therefore.

   (b)  The complaints office will assign a complaint to the prosecution and investigatory staff who, together with medical consultants as may be required, will make a determination that the complaint merits consideration. The Board prosecutor will cause to be conducted reasonable inquiry or investigation that is deemed necessary to determine the truth and validity of the allegations in the complaint. The Board prosecutor will provide reports to the Board at its regular meetings on the number, nature, procedure and handling of the complaints received.

   (c)  Upon review of the complaint, documentation, records and other materials obtained during the course of an investigation, the Board prosecutor will determine whether to initiate the filing of formal charges. The documents, materials or information obtained during the course of an investigation shall be confidential and privileged unless admitted as evidence during the course of a formal disciplinary proceeding. A person who has investigated or has access to or custody of documents, materials or information which are confidential and privileged under this subsection will not be required to testify in any judicial or administrative proceeding without the written consent of the Board.

   (d)  The Board prosecutor may enter into negotiations at any stage of the complaint, investigation or hearing process to settle the case by consent agreement.

   (1)  Consent agreements must be approved as to form and legality by the Office of General Counsel and adopted by the Board.

   (2)  Until the Board approves a consent agreement, the terms of the agreement are confidential.

   (3)  Admissions made by a respondent during the course of negotiations may not be used against the respondent in any formal disciplinary proceeding if a consent agreement cannot be reached.

   (4)  Admissions made by a respondent in a consent agreement that is ultimately rejected by the Board may not be used against the respondent in any formal disciplinary proceeding.

   (5)  This subsection does not preclude the Board prosecutor from offering, at a formal disciplinary hearing, other evidence to prove factual matters disclosed during the negotiation process.

§ 16.56.  Formal hearings open to public.

   Formal disciplinary proceedings are open to the public. Members of the press may request in advance of the hearing permission from the presiding officer for the electronic recording of the proceedings. Upon the consideration of objections by the parties, the hearing examiner may permit the electronic recording of the proceeding by members of the press if the presiding officer determines that the recording will not interfere with the efficient conduct or impartiality and fairness of the proceedings.

§ 16.57.  Appeal from the hearing examiner's decision.

   (a)  Unless otherwise ordered by the Board, the decision of the hearing examiner will become final after 20 days of its issuance.

   (1)  Upon application for review by any party or upon the Board's own notice, the Board will review the hearing examiner's decision.

   (2)  The Board will review the entire record and, if it deems it advisable, may hear additional testimony from persons already deposed or from new witnesses as well as arguments of counsel to make a Board decision.

   (3)  Additional testimony will be taken as soon as practicable.

   (4)  The Board will issue its final decision, along with its findings of fact and conclusions of law, which will be sent by mail to the parties involved.

   (b)  Unless otherwise ordered by the Board, neither the filing of an application for review nor the Board's own notice of intent to review will stay the hearing examiner's decision.

§ 16.58.  Appeal from the Board decision.

   The respondent may, within 30 days from the date of the decision of the Board, appeal to the Commonwealth Court if the appeal is based on allegations of certain errors of law under terms and conditions as cover appeals and actions involving State agencies under 2 Pa.C.S. § 702 (relating to appeals).

[Pa.B. Doc. No. 04-609. Filed for public inspection April 9, 2004, 9:00 a.m.]



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