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PA Bulletin, Doc. No. 97-1902



[49 PA. CODE CH. 23]

Volunteer License

[27 Pa.B. 6214]

   The State Board of Optometry (Board) adopts § 23.26 (relating to volunteer license) to read as set forth in Annex A.

A.  Effective Date

   The regulation is effective upon publication in the Pennsylvania Bulletin.

B.  Statutory Authority

   Section 5 of the Volunteer Health Services Act (VHSA) (35 P. S. § 449.45) mandates regulations governing: (1) qualifications for placing an active license on volunteer status; (2) criteria under which a retired licensee who has allowed a license to become inactive may obtain a volunteer license; and (3) procedures under which a volunteer license holder may return to active status. The Board is authorized to adopt regulations necessary to the administration of its enabling statute under section 3(b)(14) of the Optometric Practice and Licensure Act (63 P. S. § 244.3(b)(14)).

C.  Background and Purpose

   The purpose of the VHSA is to increase the availability of primary health services by establishing a procedure for retired optometrists and other health care practitioners to provide professional services as volunteers in approved clinics. Primary health services are defined in the VHSA as including services such as regular checkups, immunizations, school physicals, health education, prenatal and obstetrical care, early periodic screening and diagnostic testing, and health education.

   The VHSA permits persons who have been issued a license by the State Boards of Medicine, Osteopathic Medicine, Dentistry, Podiatry, Nursing, Optometry and Chiropractic to practice a component of the healing arts to apply for volunteer status. A volunteer license will be issued to a retired individual who documents to the satisfaction of the Board that the individual will practice without remuneration in approved clinics.

D.  Summary of Comments and Responses on Proposed Rulemaking

   Notice of proposed rulemaking was published at 27 Pa.B. 2955 (June 21, 1997). The Board received comments from Representative Patricia H. Vance, the prime sponsor of the VHSA, two public commentators, the House Professional Licensure Committee and the Independent Regulatory Review Commission (IRRC).

   Both Representative Vance and IRRC noticed that proposed § 23.26(b), as published, was incongruent with the VHSA which makes retired persons, or persons intending to retire, eligible for a volunteer license. Editorial changes to the proposed rulemaking filed with the Legislative Reference Bureau erroneously created, on publication, three, rather than two, pathways by which a Board-regulated practitioner could qualify for a volunteer license. Representative Vance correctly noted that proposed § 23.26(b)(3) would be applicable to both paragraphs (1) and (2), and suggested paragraph (3) be incorporated into the text of subsection (b). The House Committee supported Representative Vance's suggestion. IRRC recommended that paragraph (3) be deleted in its entirety and suggested that parts of it be incorporated into a new definitional section. In final rulemaking, the Board has accepted both suggestions, adding a definitional subsection in § 23.26(a) and restructuring § 23.26(b). The Board also accepted the suggestion of IRRC to move subsection (c)(1)(ii) to subsection (a)(2).

   The Pennsylvania Academy of Family Physicians commented that the VHSA may be interpreted as permitting nonphysicians to perform acts which require a medical license and, accordingly, requested that the issue be clarified and resolved through regulation. The Board does not concur in the view that the VHSA creates an ambiguity regarding the scope of practice for any licensee. The Board has found no language in the VHSA which creates a different scope of practice for a volunteer license in any of the enumerated categories for which a volunteer license may be granted. Therefore, the Board has determined that additional rulemaking on this subject is not needed.

   Finally, the Hospital and HealthSystem Association of Pennsylvania supported the regulation, but did not comment on the need for change in final rulemaking.

E.  Compliance with Executive Order 1996-1

   In accordance with the requirements of Executive Order 1996-1 (February 6, 1996), in drafting and promulgating the regulation, the Board solicited input and suggestions from the regulated community by providing drafts to organizations and entities which represent the professionals and to nonprofit organizations who represent qualified providers of volunteer services.

F.  Fiscal Impact and Paperwork Requirements

   1.  Commonwealth--The regulation creates a new license for which no fee will be charged. The expenses of the program will be borne as a part of the Board's overall operating expenses which are financed through biennial renewals of active licensees. Therefore, the administration and enforcement of a new license category may have a fiscal impact on overall Board costs. The net effect, however, is estimated to be minimal, owing to the relatively small number of the licensee population who will seek a volunteer license compared with the number of active licensees. Additional paperwork will be incurred by the Board and the private sector to generate and file application forms.

   2.  Political subdivisions--There will be no adverse fiscal impact or paperwork requirements imposed.

   3.  Private sector--The regulation will have a positive fiscal impact on individual licensees who restrict their professional activities to volunteer work since these individuals are exempt from maintaining professional liability insurance required under the Health Care Services Malpractice Act (40 P. S. §§ 1301.101--1301.1006) and the biennial renewal fee for licensure. The regulation should impose no additional fiscal or paperwork requirements.

G.  Sunset Date

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

H.  Regulatory Review

   Under section 5.1(a) of the Regulatory Review Act (71 P. S. § 745.5a(a)), on June 6, 1997, the Board submitted a copy of the notice of proposed rulemaking, published at 27 Pa.B. 2955, to IRRC and the Chairpersons of the House Professional Licensure Committee and the Senate Consumer Protection and Professional Licensure Committee for review and comment. In compliance with section 5(c) of the Regulatory Review Act (71 P. S.   §745.5(c)), the Board also provided IRRC and the Committees with copies of the comments received as well as other documentation.

   In preparing this final-form regulation the Board has considered the comments received from IRRC, the Committees and the public.

   This final-form regulation was approved by the House Committee on October 22, 1997, and by the Senate Committee on October 28, 1997. IRRC met on November 6, 1997, and approved the regulation in accordance with section 5(e) of the Regulatory Review Act.

I.  Public Information

   Interested persons may obtain information regarding the regulation by writing to Deborah Smith, Board Administrator, State Board of Optometry, P.O. Box 2649, 116 Pine Street, Harrisburg, PA 17105-2649.

J.  Findings

   The Board finds that:

   (1)  Public notice of proposed rulemaking was given under sections 201 and 202 of the act of July 31, 1968 (P. L. 769, No. 240) (45 P. S. §§ 1201 and 1202) and the regulations promulgated thereunder at 1 Pa. Code §§ 7.1 and 7.2.

   (2)  A public comment period was provided as required by law and all comments were considered.

   (3)  This amendment does not enlarge the purpose of proposed rulemaking published at 27 Pa.B. 2955.

   (4)  This amendment is necessary and appropriate for administration and enforcement of the authorizing acts identified in Part B of this Preamble.

K.  Order

   The Board, acting under its authorizing statutes, orders that:

   (a)  The regulations of the Board, 49 Pa. Code Chapter 23, are amended by adding § 23.26 to read as set forth in Annex A.

   (b)  The Board shall submit this order and Annex A to the Office of General Counsel and to the Office of Attorney General as required by law.

   (c)  The Board shall certify this order and Annex A and deposit them with the Legislative Reference Bureau as required by law.

   (d)  This order shall take effect on publication in the Pennsylvania Bulletin.


   (Editor's Note:  For the text of the order of the Independent Regulatory Review Commission relating to this document, see 27 Pa.B. 6128 (November 22, 1997).)

   Fiscal Note:  Fiscal Note 16A-526 remains valid for the final adoption of the subject regulation.

Annex A





§ 23.26.  Volunteer license.

   (a)  Purpose and definitions.

   (1)  The following subsections implement the Volunteer Health Services Act (35 P. S. §§ 449.41--449.50) and provide for the issuance of a volunteer license to a qualified individual who retires from active practice and seeks to provide professional services as a volunteer. A volunteer license authorizes the holder to practice only in an organized community-based clinic without remuneration.

   (2)  The following words and terms, when used in this section, have the following meanings, unless the context clearly indicates otherwise:

   Approved clinic--An organized community-based clinic offering primary health care services to individuals and families who cannot pay for their care, to Medical Assistance clients or to residents of medically underserved areas or health professionals shortage areas. The term includes a State health center, nonprofit community-based clinic and Federally qualified health center, as designated by Federal rulemaking or as approved by the Department of Health or the Department of Public Welfare.

   Unrestricted license--A license which is not restricted or limited by order of the Board under its disciplinary power.

   (b)  License. A volunteer license may be issued to a licensee of the Board who documents to the satisfaction of the Board that the applicant will practice without personal remuneration in approved clinics and meets one of the following conditions:

   (1)  Holds a currently renewed, active, unrestricted license as an optometrist in this Commonwealth and retires from active practice at the time the applicant applies for a volunteer license.

   (2)  Retires from the active practice of optometry in this Commonwealth in possession of an unrestricted license which was allowed to lapse by not renewing it. A retired licensee shall meet the requirements of the act or the regulations pertaining to continued education or continued competency to be eligible for renewal.

   (c)  Applications. An applicant for a volunteer license shall complete an application obtained from the Board. In addition to providing information requested by the Board, the applicant shall provide:

   (1)  An executed verification on forms provided by the Board certifying that the applicant intends to practice optometry exclusively:

   (i)  Without personal remuneration for professional services.

   (ii)  In an approved clinic.

   (2)  A letter signed by the director or chief operating officer of an approved clinic that the applicant has been authorized to provide volunteer services in the named clinic by the governing body or responsible officer of the clinic.

   (d)  Validity of license. A volunteer license shall be valid for the biennial period for which it is issued, subject to biennial renewal. During each biennial renewal period, the licensee shall notify the Board of any change in clinic or volunteer status within 30 days of the date of a change, or at the time of renewal, whichever occurs first.

   (e)  Biennial renewal. A volunteer license shall be renewed biennially on forms provided by the Board.

   (1)  As a condition of biennial renewal, the applicant shall satisfy the same continuing education requirements as the holder of an active, unrestricted license.

   (2)  The applicant shall be exempt from payment of the biennial renewal fee of § 23.91 (relating to fees).

   (f)  Return to active practice. A volunteer license holder who desires to return to active practice shall notify the Board and apply for biennial registration on forms provided by the Board.

   (g)  Disciplinary provisions. A volunteer license holder shall be subject to the disciplinary provisions of the act and this chapter. Failure of the licensee to comply with the Volunteer Health Services Act (35 P. S. §§ 449.41--449.50) or this section may also constitute grounds for disciplinary action.

[Pa.B. Doc. No. 97-1902. Filed for public inspection November 28, 1997, 9:00 a.m.]

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