BUREAU OF PROFESSIONAL AND OCCUPATIONAL AFFAIRS
DEPARTMENT OF STATE
[ 49 PA. CODE CH. 43b ]
[48 Pa.B. 7120]
[Saturday, November 10, 2018]
The Commissioner of Professional and Occupational Affairs (Commissioner) proposes to amend 49 Pa. Code, Chapter 43b by adding Subchapters B and C (relating to expungement; and fees) to read as set forth in Annex A.
This proposed rulemaking will be effective upon publication of the final-form rulemaking in the Pennsylvania Bulletin.
The act of February 15, 2018 (P.L. 14, No. 6) (Act 6 of 2018) amended section 5(a) of the act of July 3, 1993 (P.L. 345, No. 48) (63 P.S. § 2205(a)) to provide the authority to the Commissioner to expunge certain disciplinary records, provided various criteria are met and requires the applicant for expungement to pay all costs associated with expungement ''as established by the commissioner by regulation.'' In addition, sections 506 and 810(a)(7) of the Administrative Code of 1929 (71 P.S. §§ 186 and 279.1(a)(7)) provide the Department of State and the Commissioner the general authority to prescribe rules and regulations, not inconsistent with law, and to set fees. This proposed rulemaking effectuates Act 6 of 2018.
Background and Need for the Amendments
This proposed rulemaking is needed to effectuate Act 6 of 2018, which requires the Commissioner to expunge certain disciplinary actions upon application and the payment of all costs associated with expungement ''as established by the commissioner by regulation.''
Description of the Proposed Rulemaking
The Commissioner proposes to add two new subchapters to Chapter 43b (relating to Commissioner of Professional and Occupational Affairs). The existing language in Chapter 43b preceding the table of contents will become the heading for Subchapter A (relating to schedule of civil penalties, guidelines for imposition of civil penalties and procedures for appeal).
Subchapter B will set forth the requirements to apply for and obtain expungement of disciplinary records in accordance with Act 6 of 2018. Section 43b.101 (relating to definitions) will set forth the definitions of the terms ''expunge or expungement'' and ''licensee'' consistent with the definitions in Act 6 of 2018. Section 43b.102 (relating to expungement of disciplinary records) would provide the criteria for expungement of a disciplinary record. First, expungement is only available for two discrete categories of disciplinary record—discipline imposed for a violation involving failure to complete continuing education requirements; and discipline imposed for a violation involving practice for 6 months or less on a lapsed or expired license, registration, certificate or permit. Act 6 of 2018 prohibits the Commissioner from expunging any other categories of disciplinary record. Section 43b.102 will also set forth the statutory criteria for expungement of an eligible disciplinary record as set forth in Act 6 of 2018. It must be the licensee's only disciplinary record. The licensee may not be subject of an active investigation related to professional or occupational conduct, nor may the licensee be in a current disciplinary status (revoked, suspended or on probation). All fees, fines, civil penalties and costs associated with the disciplinary record must be paid in full. Finally, the licensee may not have more than one disciplinary record expunged.
Section 43b.103 (relating to application for expungement) sets forth the procedures for applying for expungement. It is anticipated that licensees will apply for expungement through the Bureau of Professional and Occupational Affair's (Bureau) online PALS licensing system, which contains all records associated with a license, registration, certificate or permit, including all disciplinary actions. Section 43b.103 also sets forth the timing of application as set forth in Act 6 of 2018. A licensee must wait at least 4 years from the final disposition of the discipline to apply for expungement. Finally, § 43b.103(c) requires that a licensee applying for expungement shall pay the fee established by the Commissioner, in accordance with the requirement in Act 6 of 2018 that the licensee ''shall pay all costs associated with the expungement as established by the commissioner by regulation.''
Subchapter C is proposed to be added. The Commissioner elected to establish a separate subchapter relating to fees to provide for the possibility of future fees being promulgated under the Commissioner's general authority to ''fix the fees to be charged by the several professional and occupational examining boards within the department'' as set forth in section 810 of the Administrative Code of 1929 (63 P.S. § 279.1). This proposed rulemaking would set forth a fee of $155 for the expungement of a disciplinary record. This fee is based on an evaluation of the costs associated with processing expungement applications by the Bureau's legal office staff, including administrative overhead.
Fiscal Impact and Paperwork Requirements
This proposed rulemaking will have no adverse fiscal impact on the Commonwealth or its political subdivisions. The costs to the Bureau and its licensing boards and commissions related to processing applications for expungement will be recouped through fees paid by applicants. Licensees, registrants, certificate holders and permit holders who apply for expungement of disciplinary records will be impacted by the $155 application fee. Because the PALS licensing system will include an online process to apply for expungement of an applicable disciplinary record, there should be minimal paperwork requirements for applicants.
The Commissioner continuously monitors the cost effectiveness of the Commissioner's regulations. Therefore, no sunset date has been assigned.
Under section 5(a) of the Regulatory Review Act (71 P.S. § 745.5(a)), on Thursday, October 25, 2018, the Commissioner 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 Senate Consumer Protection and Professional Licensure Committee and the House 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.
Interested persons are invited to submit written comments, recommendations or objections regarding this proposed rulemaking to Cynthia Montgomery, Counsel to the Commissioner, P.O. Box 69523, Harrisburg, PA 17106-9523, RA-STRegulatoryCounsel@pa.gov within 30 days of publication of this proposed rulemaking in the Pennsylvania Bulletin. Reference No. 16A-060 (Expungement; Fees) when submitting comments.
Commissioner of Professional and Occupational Affairs
Fiscal Note: 16A-060. No fiscal impact; (8) recommends adoption.
TITLE 49. PROFESSIONAL AND VOCATIONAL STANDARDS
PART I. DEPARTMENT OF STATE
Subpart A. PROFESSIONAL AND OCCUPATIONAL AFFAIRS
CHAPTER 43b. COMMISSIONER OF PROFESSIONAL AND OCCUPATIONAL AFFAIRS
SUBCHAPTER A. SCHEDULE OF CIVIL PENALTIES, GUIDELINES FOR IMPOSITION OF CIVIL PENALTIES AND PROCEDURES FOR APPEAL * * * * *
(Editor's Note: The following Subchapters are proposed to be added and printed in regular text to enhance readability.)
Subchapter B. EXPUNGEMENT
43b.101. Definitions. 43b.102. Expungement of disciplinary records. 43b.103. Application for expungement.
§ 43b.101. Definitions.
The following words and terms, when used in this subchapter, have the following meanings, unless the context clearly indicated otherwise:
Expunge or expungement—Removal of a disciplinary record from a licensee's record accomplished by (1) permanently sealing the affected record from public access; (2) deeming the disciplinary proceedings to which the affected record refers as not having occurred; and (3) except with respect to any subsequent application for expungement, affording the licensee the right to represent that no disciplinary record exists regarding the matter.
Licensee—Any person holding a license, registration, certificate or permit issued by a licensing board or commission under the Bureau.
§ 43b.102. Expungement of disciplinary records.
(a) Eligibility. The following disciplinary records are eligible for expungement:
(1) Discipline imposed for a violation involving failure to complete continuing education requirements.
(2) Discipline imposed for a violation involving practicing for 6 months or less on a lapsed or expired license, registration, certificate or permit.
(b) Prohibition. The Commissioner will not expunge disciplinary records for any violation other than those listed in subsection (a).
(c) Criteria for expungement of an eligible disciplinary record. The Commissioner will expunge an eligible disciplinary record if the following criteria are met:
(1) The disciplinary record must be the licensee's only disciplinary record with a licensing board or commission under the Commissioner's jurisdiction.
(2) The licensee may not be the subject of an active investigation related to professional or occupational conduct.
(3) The licensee may not be in a current disciplinary status, such as revoked, suspended or on probation.
(4) Any fees or fines, including civil penalties and costs imposed in a disciplinary proceeding, assessed against the licensee must be paid in full.
(5) The licensee may not have had a disciplinary record previously expunged by the Commissioner.
§ 43b.103. Application for expungement.
(a) A licensee may apply for expungement in accordance with this subchapter in the manner prescribed by the Commissioner.
(b) A licensee may apply for expungement not earlier than 4 years from the final disposition of the disciplinary record.
(c) A licensee applying for expungement shall pay the fee set forth in § 43b.201 (relating to fees for services) for expungement of a disciplinary record.
Subchapter C. FEES
43b.201. Fees for services.
§ 43b.201. Fees for services.
The following fees are charged for services provided by the Commissioner/Bureau:
Expungement of a disciplinary record
[Pa.B. Doc. No. 18-1745. Filed for public inspection November 9, 2018, 9:00 a.m.]
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