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RULES AND REGULATIONS

STATE BOARD OF PSYCHOLOGY

[49 PA. CODE CH. 41]

Notice Requirements

[34 Pa.B. 6416]

   The State Board of Psychology (Board) adopts §§ 41.91 and 41.92 (relating to reporting of crimes and disciplinary actions; and notice of active suspension or revocation) to read as set forth in Annex A.

Statutory Authority

   This final-form rulemaking is authorized under the authority of sections 3.2(2), 8(a)(6)--(8), 8.1, 11(c) and 17 of the Professional Psychologists Practice Act (act) (63 P. S. §§ 1203.2(2), 1208(a)(6)--(8), 1208.1, 1211(c) and 1217).

Response to Public Comments and Regulatory Review and Amendments in Final Form Rulemaking

   Notice of the proposed rulemaking was published at 34 Pa.B. 60 (January 3, 2004). Publication was followed by a 30-day public comment period during which the Board received comments from the Pennsylvania Psychological Association (PPA). The House Professional Licensure Committee (HPLC) and the Independent Regulatory Review Commission (IRRC) also submitted comments. The Senate Consumer Protection and Professional Licensure Committee (SCP/PLC) did not comment.

§ 41.91 (relating to reporting of crimes and disciplinary actions)

Subsection (a)

   Subsection (a) requires licensees to notify the Board of any felony or misdemeanor convictions. The HPLC, IRRC and the PPA questioned why the Board did not limit the misdemeanor notification to misdemeanors committed in the practice of psychology. In addition to authorizing the Board to discipline licensees for misdemeanor convictions related to the practice of psychology, section 8(a) of the act, authorizes the Board to impose discipline for other misdemeanors if they fall within other enumerated categories, such as immoral conduct in section 8(a)(11) of the act or submitting an insurance claim for services not actually provided in section 8(a)(14) of the act. In that the determination of whether a misdemeanor conviction falls within section 8(a) of the act is fact-specific, the Board believes that it is prudent for licensees to report all misdemeanors rather than risk failing to report. This provision parallels other licensing boards' reporting requirements.

   The PPA questioned whether a licensee would be required to report the conviction if it has been appealed. Under the rulemaking, licensees would be required to report the conviction but may advise the Board that the conviction is on appeal.

   Section 8(a)(6) of the act defines ''conviction'' as including findings of guilt, pleas, dispositions without verdict and accelerated rehabilitative dispositions. The HPLC, IRRC and the PPA recommended that the Board track the language in section 8(a)(6) of the act or reference the act in subsection (a). Owing to this concern, the Board amended subsection (a) by deleting guilty and nolo contendere pleas and inserting a reference to the act.

   IRRC also suggested that the Board add the following clause to subsection (a): ''or on the biennial renewal application, whichever is sooner'' to parallel subsection (b). The Board concurs with this suggestion and has added this clause.

   Finally IRRC questioned why the Board used the terms ''provincial board of psychology'' instead of ''country'' as referenced in the act. Although the regulated community of psychologists refers to ''provincial boards of psychology'' when referring to foreign boards rather than ''country,'' the Board has replaced ''provincial boards of psychology'' with ''country'' to track the statute.

Subsection (b)

   Subsection (b) requires that all disciplinary actions be reported to the Board within 30 days. IRRC correctly comments that the act permits the reports within 90 days. Accordingly, the Board has amended subsection (b) in conformity with section 8.1 of the act.

   Additionally, in the proposed rulemaking subsection (b) referred to disciplinary actions by ''provincial boards of psychology.'' IRRC recommended that the Board track the language in sections 8 and 8.1 of the act. Although the Board understands that licensing jurisdictions in other countries refer to themselves as ''provincial boards of psychology,'' the Board has amended the language in subsection (b) to track the act.

§ 41.92 (relating to notice of active suspension or revocation)

   In addition to requiring licensees who have been actively suspended or revoked to return their license to the Board within 30 days, in the proposed rulemaking, § 41.92 required licensees to advise their current clients/patients of the disciplinary action in writing. In final- form, the Board identified another group of individuals who should be advised of the licensee's active suspension or revocation--Ph.D. and Psy.D. holders on the licensure track who are obtaining their supervised experience with the disciplined licensee. Under § 41.32(8) (relating to standards for supervisors) a supervisor may not be the subject of a disciplinary action. Timely notification to the supervisees will allow the supervisees to find a replacement for the disciplined licensee.

   IRRC questioned whether licensees who voluntarily surrender their licenses would also be required to notify their client/patients. The Board believes that where the licensee has voluntarily surrendered the license in lieu of further discipline, notification is necessary. However, where the licensee has surrendered the license not in connection with discipline, for example, because the licensee is retiring or moving to another state, the Board does not believe that the requirements of this section should apply. Accordingly, the Board has amended this provision to include voluntary surrenders in lieu of discipline.

   The HPLC and the PPA asked the Board to clarify ''actively suspended or revoked.'' Among the disciplinary sanctions the Board may impose are suspension and revocation. Unless the suspension has been stayed, in both active suspensions and revocations, licensees are prohibited from engaging in the practice of psychology for a specified period of time. In the case of revocations, the statutory prohibition from practice is at least 5 years. The length of an active suspension is set out in the Board's disciplinary order. Because stayed suspensions do not prohibit a licensee from practice, the Board limited this mandatory notification requirement to active suspensions and revocations.

   IRRC asked the Board to explain its requirement that actively suspended or revoked licensees assist current clients/patients with transferring records and obtaining alternative professional resources. To ensure continuity of treatment for clients/patients, especially ones who have been treating with the same psychologist for many years, the Board believes that the actively suspended or revoked licensee must make referrals to other appropriate professionals and provide treatment records. The Board believes that simply immediately ending treatment without these necessary steps would be harmful to the patient, especially in cases where the patient has abandonment and separation issues.

   Finally, IRRC asked the Board to explain how this provision would affect school psychologists. School psychologists fit within two categories: certified school psychologists who are not licensed by the Board and licensed school psychologists. As with all other regulations of the Board, school psychologists who are only certified school psychologists and not also licensed school psychologists are not within the Board's jurisdiction and are not required to comply with these regulations. Licensed school psychologists are within the Board's jurisdiction and would have to comply. Because the licensed school psychologists are employed by the school districts directly or as independent contractors, these licenses would be required to notify the school district because the school district is their client.

Fiscal Impact and Paperwork Requirements

   This final-form rulemaking will have no fiscal impact on the Commonwealth, its political subdivisions, the public or the regulated community. This final-form rulemaking creates additional reporting requirements on those licensees who voluntarily relinquish their license in lieu of discipline or who are actively suspended or revoked by the Board in that they are required to notify their patients of the Board's disciplinary action. Because the act currently requires all licensees to report nolo or guilty pleas and licensees with multiple licenses to report discipline taken in other states, there are no new legal, reporting or other paperwork requirements on these licensees.

Sunset Date

   The Board continually monitors the effectiveness of its regulations through communication with the regulated population; accordingly, no sunset date has been set.

Regulatory Review

   Under section 5(a) of the Regulatory Review Act (71 P. S. § 745.5(a)), on December 17, 2003, the Board submitted a copy of this proposed rulemaking, published at 34 Pa.B. 60, to IRRC and the Chairpersons of the HPLC and the SCP/PLC for review and comment.

   Under section 5(c) of the Regulatory Review Act, IRRC, the HPLC and the SCP/PLC were provided with copies of the comments received during the public comment period, as well as other documents when requested. In preparing the final-form rulemaking, the Board has considered all comments from IRRC, the HPLC, the SCP/PLC and the public.

   Under section 5.1(j.2) of the Regulatory Review Act (71 P. S. § 745.5a(j.2)), on October 19, 2004, the final-form rulemaking was approved by the HPLC. On November 3, 2004, the final-form rulemaking was deemed approved by the SCP/PLC. Under section 5.1(e) of the Regulatory Review Act, IRRC met on November 4, 2004, and approved the final form rulemaking.

Contact Person

   Further information may be obtained by contacting Christine Stuckey, Administrative Assistant, State Board of Psychology, P. O. Box 2649, Harrisburg, PA 17105-2649, www.state.pa.us/bpoa/psyc/mainpage.

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, 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 final form rulemaking does not enlarge the purpose of proposed rulemaking published at 34 Pa.B. 60.

   (4)  This final-form rulemaking is necessary and appropriate for administering and enforcing the authorizing acts identified in this Preamble.

Order

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

   (a)  The regulations of the Board, 49 Pa. Code Chapter 41, are amended by adding §§ 41.91 and 41.92 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 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.

ALEX M. SIEGEL, J.D./Ph.D.,   
Chairperson

   (Editor's Note: For the text of the order of the Independent Regulatory Review Commission relating to this document, see 34 Pa.B. 6292 (November 20, 2004).)

   Fiscal Note: Fiscal Note 16A-6314 remains valid for the final adoption of the subject regulations.

Annex A

TITLE 49. PROFESSIONAL AND VOCATIONAL STANDARDS

PART I. DEPARTMENT OF STATE

Subpart A. PROFESSIONAL AND OCCUPATIONAL AFFAIRS

CHAPTER 41. STATE BOARD OF PSYCHOLOGY

NOTICE REQUIREMENTS

§ 41.91. Reporting of crimes and disciplinary actions.

   (a)  A licensee shall notify the Board of having been convicted, as defined in section 8(a)(6) of the act (63 P. S. § 1208(a)(6)), of a felony or misdemeanor, within 30 days of the conviction, or on the biennial renewal application, whichever is sooner.

   (b)  A licensee shall notify the Board of disciplinary action in the nature of a final order taken against the licensee by the licensing authority of another state, territory or country within 90 days of receiving notice of the disciplinary action, or on the biennial renewal application, whichever is sooner.

§ 41.92. Notice of active suspension or revocation.

   A licensee who has voluntarily surrendered a license in lieu of discipline or whose license has been actively suspended or revoked by the Board shall return the suspended or revoked license to the Board and notify all current clients/patients and any individuals obtaining supervision for licensure from the licensee of the disciplinary action in writing within 30 days of receiving notice of the disciplinary action. The notice must contain the following:

   (1)  The sanction imposed.

   (2)  The effective date and length of the sanction.

   (3)  The nature of the violation.

   (4)  A statement that the licensee will assist patients in obtaining alternative professional resources and in transferring psychological records.

[Pa.B. Doc. No. 04-2142. Filed for public inspection December 3, 2004, 9:00 a.m.]



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