Notice of Comments Issued [33 Pa.B. 1424] Section 5(d) of the Regulatory Review Act (71 P. S. § 745.5 (d)) provides that the designated standing Committees may issue comments within 20 days of the close of the public comment period, and the Independent Regulatory Review Commission (Commission) may issue comments within 10 days of the close of the Committee comment period. The Commission comments are based upon the criteria contained in section 5.1(h) and (i) of the Regulatory Review Act (71 P. S. § 745.5a(h) and (i)).
The Commission has issued comments on the following proposed regulations. Each agency must consider these comments in preparing the final-form regulation. The final-form regulation must be submitted within 2 years of the close of the public comment period or it will be deemed withdrawn.
Reg. No. Agency/Title Close of the Public Comment Period IRRC Comments Issued 7B-5 Department of Conservation and Natural Resources
Snowmobile and All-Terrain Vehicle Registration
and Operation
(32 Pa.B. 4364 (September 7, 2002))11/6/02 12/6/02 16A-4612 State Board of Dentistry
Expanded Function Dental Assistants
(32 Pa.B. 5283 (October 26, 2002))11/25/02 2/24/03 16A-4613 State Board of Dentistry
Sexual Misconduct
(32 Pa.B. 5284 (October 26, 2002))11/25/02 2/24/03 16A-5117 State Board of Nursing
Continuing Education
(32 Pa.B. 5666 (November 16, 2002))12/16/02 2/28/03 16A-446 State Board of Podiatry
Continuing Education
(32 Pa.B. 5759 (November 23, 2002))12/23/02 2/28/03 16A-454 State Board of Cosmetology
Sanitation/Disinfection
(32 Pa.B. 5279 (October 26, 2002))11/25/02 3/3/03
______ Department of Conservation and Natural Resources Regulation No. 7B-5 Snowmobile and All-Terrain Vehicle Registration and Operation December 6, 2002 We submit for consideration the following objections and recommendations regarding this regulation. Each objection or recommendation includes a reference to the criteria in the Regulatory Review Act (71 P. S. § 745.5a(h) and (i)) which have not been met. The Department of Conservation and Natural Resources (Department) must respond to these comments when it submits the final-form regulation. If the final-form regulation is not delivered within 2 years of the close of the public comment period, the regulation will be deemed withdrawn.
1. Form furnished by the Department.--Clarity.
Sections 51.12 and 51.15 use the phrase ''form furnished by the Department.'' The form names or numbers should be included in the final-form regulation.
2. Section 51.12. Applications for title and registration.--Clarity.
Subsection (a). Contents of application.
This subsection lists the information that must be included on an application for a certificate of title and registration. Paragraph (9) states that a temporary registration number must be included on the form submitted to the Department. For clarity, the phrase ''A temporary registration number'' should be replaced with ''The temporary registration number issued by the dealer.''
Subsection (b). Proof of ownership; fees.
This subsection lists items that must be included with the application. Paragraph (1) requires an applicant to provide proof of ownership. The final-form regulation should include examples of documentation that qualifies as acceptable proof of ownership.
3. Section 51.35. Sanctions for violations by dealers.--Clarity; Reasonableness.
Subsection (b). Second and subsequent violations.
This subsection addresses second and subsequent ''violations.'' We note that subsection (a) addresses first and subsequent ''offenses.'' We request the Department explain the difference between a ''violation'' and an ''offense.'' The title of § 51.35 refers to ''violations.'' If there is no difference between ''offense'' and ''violation,'' the term ''violation'' should be used consistently throughout § 51.35.
Subsection (c). Multiple violations.
Under this subsection, the Department may determine that suspensions imposed for multiple violations be served concurrently or consecutively. The final-form regulation should include the criteria the Department will use to determine whether suspensions will be served concurrently or consecutively.
Subsection (f). Return of dealer certificate, plates and cards.
Subsection (f)(1) provides a 3 day time frame after the effective date of a suspension or revocation for a dealer to return the registration certificate, registration plates and registration cards. Is this sufficient time to return the required material?
Subsection (f)(2) allows for ''an acceleration of the application of sanctions'' if a dealer fails to return the items listed in subsection (f)(1). The phrase ''acceleration of the application of sanctions'' is vague. We request the Department clarify the meaning of this phrase.
4. Section 51.45. Fees for additional dealer plates.-- Reasonableness.
This section increases the fees for additional snowmobile and ATV dealer plates. We request the Department explain the basis for these fee increases.
5. Section 51.51. Safety training.--Clarity.
Paragraph (1) requires snowmobile and ATV safety training to be conducted by instructors or organizations approved by the Department. The final-form regulation should clarify how a person would know if an instructor or organization was approved by the Department. Does the Department publish a list of approved instructors and organizations? What is the process for an instructor or organization to become approved by the Department?
6. Section 51.54. Safety certificates.--Clarity.
Subsection (c) states that safety certificates from other states or provinces of Canada will be accepted if the Department deems the safety training programs of the other jurisdictions to be comparable to the Department's safety training program. How will the Department determine if an outside safety training program is comparable to its own safety training program? How would a person know if a safety certificate from another state or a province of Canada is acceptable to the Department?
7. Section 51.72. Operation of ATV with a passenger.--Legislative intent; Policy decision of such a substantial nature that it requires legislative action.
This section states the following:
Operating an ATV with a passenger, unless the ATV was originally designed by the manufacturer to carry a passenger, is a violation of section 7726 (a)(2) of the Vehicle Code (relating to operation in safe manner--general rule) and is prohibited.
Section 7726(a) of the Vehicle Code states the following:
No person shall operate a snowmobile or an ATV in any of the following ways:
(1) At a rate of speed that is unreasonable or improper under existing conditions or in excess of the maximum limits posted for vehicular traffic.
(2) In any careless way so as to endanger the person or property of another.
(3) While under the influence of alcohol or any other controlled substance.
House Bill 154 of the 2001-2002 legislative session, signed into law on June 25, 2001, amended the Snowmobile and All-Terrain Vehicle Law (75 Pa.C.S. §§ 7702--7752). Representatives Merle H. Phillips, Richard A. Geist and Keith McCall, sponsors of House Bill 154 and Representatives Art Hershey, Robert Godshall and Michael Hanna have submitted comments indicating that § 51.72 exceeds the legislative intent of the General Assembly. They note language similar to § 51.72 was intentionally deleted from House Bill 154.
In addition, Representative Godshall has submitted comments stating that ''Safety measures in dealing with ATV's should be dealt with legislatively and not by the bureaucratic body.''
Given the legislative history and previously referenced concerns, the Department should delete § 51.72 or explain how it is consistent with the legislative intent of House Bill 154.
8. Section 51.91. Snowmobile sound level requirements.--Clarity.
Under subsection (c), the phrase ''alternate proof, acceptable to the Department'' is vague. The final-form regulation should specify the forms of ''alternate proof'' which are acceptable.
______ State Board of Dentistry Regulation No. 16A-4612 Expanded Function Dental Assistants February 24, 2003 We submit for consideration the following objections and recommendations regarding this regulation. Each objection or recommendation includes a reference to the criteria in the Regulatory Review Act (71 P. S. § 745.5a(h) and (i)) which have not been met. The State Board of Dentistry (Board) must respond to these Comments when it submits the final-form regulation. If the final-form regulation is not delivered within 2 years of the close of the public comment period, the regulation will be deemed withdrawn.
Section 33.103. Examinations.--Clarity.
This proposed regulation, in subsection (c), requires expanded function dental assistants (EFDA) to ''pass an examination acceptable to the Board.'' However, subsections (a), (b) and (d) set forth the specific types of examinations (written and clinical) dentists and dental hygienists must pass. For clarity and consistency, the Board should set forth which type of examination it will require a person applying to become an EFDA to pass.
______ State Board of Dentistry Regulation No. 16A-4613 Sexual Misconduct February 24, 2003 We submit for consideration the following objections and recommendations regarding this regulation. Each objection or recommendation includes a reference to the criteria in the Regulatory Review Act (71 P. S. § 745.5a(h) and (i)) which have not been met. The State Board of Dentistry (Board) must respond to these Comments when it submits the final-form regulation. If the final-form regulation is not delivered within 2 years of the close of the public comment period, the regulation will be deemed withdrawn.
Section 33.211a. Sexual Misconduct.--Clarity.
General
As proposed, § 33.211a contains both definitions and substantive regulatory provisions. To be consistent with regulatory framework existing in Chapter 33, the Board should create two separate sections. The definitions should remain in § 33.211a. The substantive provisions should be placed in a separate section following the definitions.
The terms ''sexual misconduct'' and ''sexual exploitation'' are used interchangeably in the regulation. The regulation should use one term consistently.
Paragraph (1). Definitions.
There are two concerns.
First, the definition of ''sexual exploitation'' is vague. In its comments dated February 12, 2003, the House Professional Licensure Committee expressed concern with this definition. The regulation should include a greater level of specificity in its definition of ''sexual exploitation'' or include examples of exploitation.
Second, the definition of ''sexual behavior'' uses the phrase ''any sexual conduct that has no diagnostic or therapeutic purpose.'' It is unclear what types of dental practice would have a diagnostic or therapeutic purpose and also be sexual in nature. If the Board cannot identify any examples of diagnostic or therapeutic procedures within the scope of dental practice that could also be sexual in nature, then this phrase should be deleted from the definition.
Subsection (2). Disciplinary action.
This subsection states that sexual misconduct will subject a practitioner to ''disciplinary action.'' For clarity, cross-references to the appropriate provisions for disciplinary action and penalties should be provided in this subsection. For example, it should reference disciplinary action and civil penalties in sections 4.1(a)(8) and 10.1 of the Dental Law (63 P. S. §§ 123.1(a)(8) and 129.1).
Subsection (5). Exclusion.
The exclusion indicates that the regulation does not apply to a ''spouse or equivalent domestic partner.'' However, there is no definition of ''equivalent domestic partner.''
The House Professional Licensure Committee also expressed concern related to ''significant others'' who become patients of practitioners. Is the intent to exclude spouses and people who live together on a permanent basis or are more casual relationships also excluded? The regulation should clarify the types of relationships covered by this exclusion.
______ State Board of Nursing Regulation No. 16A-5117 Continuing Education February 28, 2003 We submit for consideration the following objections and recommendations regarding this regulation. Each objection or recommendation includes a reference to the criteria in the Regulatory Review Act (71 P. S. § 745.5a(h) and (i)) which have not been met. The State Board of Nursing (Board) must respond to these Comments when it submits the final-form regulation. If the final-form regulation is not delivered within 2 years of the close of the public comment period, the regulation will be deemed withdrawn.
1. Continuing Education.--Clarity.
The title and undesignated center heading of this rulemaking is ''Continuing Education.'' This rulemaking addresses the continuing education requirements of Certified Registered Nurse Practitioners (CRNP) who are approved to prescribe and dispense drugs. The continuing education requirements of CRNPs who are approved to prescribe and dispense drugs are different than CRNPs who are not approved to prescribe and dispense drugs. For clarity, the title should be changed to reflect that this rulemaking applies to CRNPs that are approved to prescribe and dispense drugs.
2. Section 21.332. Requirement of continuing education.--Statutory Authority; Legislative intent; Reasonableness; Protection of public health, safety and welfare; Clarity.
Subsection (a)(2)
This subsection addresses reactivation of prescriptive authority. Subparagraph (ii) states that an applicant can provide evidence to the Board that demonstrates the applicant has practiced in another jurisdiction. The final-form regulation should describe what would be acceptable evidence.
Subsection (b)(3)
This subsection provides that the Board may waive the requirements of continuing education ''in cases of illness or undue hardship.'' We have two concerns.
First, we question the Board's statutory authority to provide this waiver. Section 8.1(c) of the Professional Nursing Law Act states that, as a condition of biennial renewal, a CRNP ''must'' complete the required hours of continuing education. It does not provide for exemptions or exclusions.
If the Board demonstrates that it has the statutory authority to grant waivers, we question the reasonableness of allowing a CRNP to prescribe and dispense drugs without the benefit of continuing education in this field. In addition, the availability of continuing education from a multitude of sources, as provided in § 21.334(e), ensures that CRNPs have ample opportunity to meet their continuing education requirements.
The comment and response portion of the final-form regulation should provide the specific statutory authority that allows the Board to grant a waiver for illness or undue hardship. It should also explain how the health and safety of the public is adequately protected when CRNPs with prescriptive authority are allowed to practice without the benefit of continuing education. In the alternative, this provision should be deleted.
Second, the subsection does not state how an applicant could apply for a waiver or how the Board will review the request. If the Board maintains the waiver provision in the final-form regulation, it should describe how an applicant could apply for the waiver and what the Board's responsibilities are for reviewing the request.
3. Section 21.334. Sources of continuing education.--Clarity.
Subsection (a)
This subsection requires credentialing organizations to provide certificates of completion to CRNPs who complete continuing education courses. This subsection would be more appropriate under § 21.335.
Subsection (b)
The phrase ''The Board finds that'' is unnecessary and should be deleted from the final-form regulation.
Subsection (e)
Under this subsection, a CRNP may obtain credit for correspondence courses, taped study courses and other independent study courses if approved by the Board. We have three questions. First, would a course offered through the Internet be acceptable? Second, is there a limit to the number of courses from subsection (e) that could be used to meet the continuing education requirement? Third, what kind of documentation must be submitted to obtain approval of the Board?
4. Section 21.336. Continuing education course approval.--Reasonableness.
This section establishes procedures for providers and individual CRNPs to submit applications for approval of continuing education courses. However, the section provides no direction regarding the timing for submitting applications. Has the Board considered requiring licensees or providers to submit applications a specific number of days or in a specific time period before the courses begin? Through this requirement, the Board could give notice to licensees and providers to submit applications in a timely manner. This would give the Board sufficient opportunity to review the courses before CRNPs enroll or participate.
______ State Board of Podiatry Regulation No. 16A-446 Continuing Education February 28, 2003 We submit for consideration the following objections and recommendations regarding this regulation. Each objection or recommendation includes a reference to the criteria in the Regulatory Review Act (71 P. S. § 745.5a(h) and (i)) which have not been met. The State Board of Podiatry (Board) must respond to these Comments when it submits the final-form regulation. If the final-form regulation is not delivered within 2 years of the close of the public comment period, the regulation will be deemed withdrawn.
1. Section 29.60. Definitions.--Clarity.
''Clock hour'' is defined as ''Educational conferences will be approved for continuing education credit at the rate of one credit per 60 minutes of instruction, exclusive of coffee breaks, lunches, visits to exhibits and the like.'' The phrase ''Educational conferences will be approved for continuing education credit at the rate of one credit per 60 minutes'' is a substantive provision. Substantive provisions in a definition are not enforceable. Therefore, the Board should move this provision of the definition to § 29.62. We recommend that the definition of ''clock hour'' be changed to ''60 minutes of instruction, exclusive of coffee breaks, lunches, visits to exhibits and the like.''
2. Section 29.61. Requirements for biennial renewal and eligibility to conduct educational conferences.--Clarity.
Subsection (c) uses the phrase ''forms approved by the Board.'' The form name or number should be included in the final-form regulation. The regulation should specify how and where an applicant could obtain the form. If the form is available for downloading from the Board's website, this information should be included in the regulation.
Subsection (d) requires a licensee to retain documentation of completion of the prescribed number of clock hours for 5 years. This requirement is vague. The final-form regulation should clarify if the 5-year requirement is specific to each course completed or to each biennial period.
3. Section 29.63a. Preapproved course provider.--Reasonableness; Clarity.
This section identifies courses within the scope of podiatry that are offered or approved by the Council on Podiatric Medical Education, are preapproved and will be accepted for continuing education credit. In its comments on the proposed regulation dated February 12, 2003, the House Professional Licensure Committee questioned why courses given by the American Medical Association and American Osteopathic Association were not also listed as preapproved. We share the concerns raised by the House Professional Licensure Committee and request an explanation of why these organizations were not included as preapproved course providers for courses relevant to podiatric medicine.
4. Section 29.68. Continuing education exemptions.--Statutory authority; Legislative intent; Reasonableness; Protection of public health, safety and welfare.
This section states, in part, that the Board ''. . . may waive all or a portion of the continuing education requirement for biennial renewal upon request of a licensee for serious illness or other demonstrated hardship.'' We question the Board's statutory authority to provide this waiver. Section 9.1 of the Podiatry Practice Act (63 P. S. § 42.9a) requires that an applicant for renewal registration furnish the Board with satisfactory evidence of attending the required hours of continuing education courses. There is no provision for exemption or waiver. If an applicant does not provide satisfactory evidence, then he or she cannot receive renewal for the next biennial licensing period.
If the Board demonstrates that it has the statutory authority to grant waivers, we question the reasonableness of allowing a podiatrist to practice without the benefit of continuing education. In addition, the availability of continuing education from a multitude of sources, as provided in § 29.61(a), ensures that podiatrists have ample opportunity to meet their continuing education requirements.
The comment and response portion of the final-form regulation should provide the specific statutory authority that allows the Board to grant a waiver for serious illness or demonstrated hardship. It should also explain how the health and safety of the public is adequately protected when podiatrists are allowed to practice without the benefit of continuing education. In the alternative, this provision should be deleted.
______ State Board of Cosmetology Regulation No. 16A-454 Sanitation/Disinfection March 3, 2003 We submit for consideration the following objections and recommendations regarding this regulation. Each objection or recommendation includes a reference to the criteria in the Regulatory Review Act (71 P. S. § 745.5a(h) and (i)) which have not been met. The State Board of Cosmetology (Board) must respond to these Comments when it submits the final-form regulation. If the final-form regulation is not delivered within 2 years of the close of the public comment period, the regulation will be deemed withdrawn.
1. Section 7.71. Equipment and supplies for a cosmetology shop; Section 7.71a. Equipment and supplies for a cosmetician shop; and Section 7.71b. Equipment and supplies for a manicuring shop.--Clarity.
The House Professional Licensure Committee requested an explanation as to what is meant by ''sufficient'' equipment for each additional licensee in a shop. We agree that subsection (b) of these sections are vague. It is not clear how to comply with the requirement for ''sufficient'' supplies and equipment for additional cosmetologists, cosmeticians and manicurists. The regulation should provide more specific guidance.
2. Section 7.92. Sanitation and disinfection of equipment and implements.--Need and Clarity.
Subsection (a)(3) requires cleansed and disinfected objects to be rinsed with clean water and ''dried with a clean towel.'' Is it acceptable to allow objects to air dry, or is it necessary to wipe the objects after they are cleansed and disinfected?
3. Section 7.114. School equipment and supplies.--Need.
As amended, subsection (a)(12) and (13) would require schools to have a bulletin board and a chalkboard. Could other equipment accomplish the same objective, such as white boards and overhead projectors? If so, the Board should consider broader requirements that would allow similar equipment.
JOHN R. MCGINLEY, Jr.,
Chairperson[Pa.B. Doc. No. 03-477. Filed for public inspection March 14, 2003, 9:00 a.m.]
