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RULES AND REGULATIONS

STATE BOARD OF PHYSICAL THERAPY

[ 49 PA. CODE CH. 40 ]

Act 38 of 2008 Amendments

[42 Pa.B. 7652]
[Saturday, December 22, 2012]

 The State Board of Physical Therapy (Board) amends Chapter 40 to read as set forth in Annex A.

Description and Need for the Rulemaking

 The act of July 4, 2008 (P. L. 293, No. 38) (Act 38) substantially amended the Physical Therapy Practice Act (act) (63 P. S. §§ 1301—1313), including qualifications for licensure as a physical therapist, continuing education for physical therapists and physical therapist assistants, professional liability insurance for physical therapists, physician referral and supervision of physical therapist assistants by physical therapists on a basis that may be less than direct on-premises supervision. The extensive nature and breadth of these amendments required that the Board amend its regulations to implement Act 38. The Board amends the regulations to implement the changes from Act 38 and to conform the regulations to current practice.

Summary of Comments and Responses to Proposed Rulemaking

 The Board published notice of proposed rulemaking at 41 Pa.B. 4962 (September 17, 2011) with a 30-day public comment period. The Board received comments from the following members of the public: the Pennsylvania Physical Therapy Association (PPTA); the Pennsylvania Health Care Association; the Neuman University Physical Therapy Program; the Philadelphia Consortium of Academic Coordinators of Clinical Education; James Baniewicz, PT; Colleen Chancler, PT; Kevin M. Cooney, PT; Thomas Glumac, PT; Cheryl L. Kramer, PT; Alicia Moran, PTA; Barbara Potena, PT; LaVerne Russell, PT; Terri Russell, PT; and Antoinette Amodi, PT and others including a large group from the Reading Hospital. The Board received comments from the House Professional Licensure Committee (HPLC) and the Independent Regulatory Review Commission (IRRC) as part of their review of proposed rulemaking under the Regulatory Review Act (71 P. S. §§ 745.1—745.12). The Board did not receive comments from the Senate Consumer Protection and Professional Licensure Committee (SCP/PLC).

 The HPLC noted that, although Act 38 was effective October 2, 2008, the proposed rulemaking was published on September 17, 2011. IRRC indicated that it would review the Board's response to this comment as part of its determination as to whether the final-form rulemaking is in the public interest. The Board recognizes that section 16 of Act 38 directed the Board to promulgate regulations to implement the amendments to the act within 18 months of the effective date of Act 38 (or by April 2, 2010) and that the Board failed to do so. However, because these types of time frames have been held by the courts of the Commonwealth to be directory, and not mandatory, the Board believes that the fact that it was unable to complete the regulatory process within 18 months as directed should not be controlling in deciding whether the final-form rulemaking is in the public interest. See, for example, Commonwealth ex rel. Fortney v. Wozney, 326 Pa. 494, 497 (1937) (''The provisions of a statute requiring public officers to act within a specified time are generally regarded as directory, unless time is of the essence of the thing to be done, or the statute indicates that the provision is to be regarded as mandatory.''); and Delaware County v. Department of Public Welfare, 383 A.2d 240 (Pa. Commonwealth Ct. 1978). The Board began the task of drafting these regulations as soon as Act 38 was passed. The Regulations Committee of the Board met monthly with interested parties and stakeholders for over a year to craft these regulations. Once the Board was satisfied with the draft of the proposed rulemaking, it proceeded through internal departmental/adminis-trative review. The Board was unable to complete the process before the General Assembly adjourned the 2009-2010 session. Early in 2011, the Board was contacted by the Executive Director of the HPLC who identified some policy issues with the proposed rulemaking and asked the Board to consider those issues before publishing the proposed rulemaking. As a result, the Board voted to make additional revisions at its meeting in March 2011. The regulations then continued to be reviewed by the new administration. Ultimately, the proposed rulemaking was delivered and published in September 2011. Much of the delay was not under the Board's control. For these reasons, the Board believes that the delay should not be considered in evaluating the final-form rulemaking.

 The HPLC questioned the Board's statutory authority to include physical therapy assistant students in the physical therapist to physical therapist assistant supervision ratio of § 40.171(c) (relating to functions of physical therapist assistants), as section 9.1(c)(6) of the act (63 P. S. § 1309.1(c)(6)) specifically limits a physical therapist to supervising no more than three physical therapist assistants. IRRC also asked this question. The Board believes that it retains the authority to limit the number of students seeking to become certified as physical therapy assistants that a physical therapist may supervise at a given time. However, upon further consideration of the comments, the Board concluded that it is not necessary to include physical therapist assistant students in the ratio. IRRC suggested that the Board also make clear that the physical therapist providing supervision is licensed. The Board revised § 40.171(c) to refer specifically to a ''licensed physical therapist.''

 After noting its interest in the Board's responses to the two comments from the HPLC, IRRC raised the economic impact of the final-form rulemaking. IRRC recommended that the Board amend its responses to questions 17, 19, 20 and 21 of the Regulatory Analysis Form to provide cost estimates associated with implementation and compliance with the final-form rulemaking, specifically the continuing education and professional liability insurance requirements and the Board's review of additional continuing education programs. The obligations to complete continuing education and to maintain professional liability insurance are required under the act. The Board is merely implementing the statutory mandate. The regulated community will incur costs in participating in continuing education and purchasing professional liability insurance. Those costs were not included in evaluating the impact of this final-form rulemaking and should not be considered as a factor in determining whether the final-form rulemaking is in the public interest as it is not the Board's action in promulgating regulations to implement requirements that imposes those costs on the regulated community. The Board determined that the average annual cost to comply with the statutorily mandated continuing education to be approximately $400 but could be substantially less. Some continuing education activities, such as authoring publications, do not have direct costs. Often, professional associations offer continuing education at a reduced rate to members. As for the costs associated with meeting the professional liability insurance requirements imposed by the act, the Board notes that many physical therapists already maintain professional liability insurance, either personally or through an employer, so the fiscal impact may actually be very small. However, the estimated costs of professional liability insurance in the amount of $1 million per occurrence or claims made for a physical therapist is estimated at $500 per year for a full-time physical therapist. The regulatory analysis has been revised to reflect these costs.

 The only cost to be imposed as a result of the final-form rulemaking is the cost to continuing education providers to obtain approval of continuing education programs and courses. However, the vast majority of continuing education will be provided by preapproved providers who will not have to incur that cost. As a result, the aggregate cost of continuing education course approval to providers will be minimal. Because the Board will recover its costs of approving continuing education programs and courses through its already set fee, there is not an additional cost to the Board.

 IRRC noted that section 9(c) of the act (63 P. S. § 1309(c)) requires a physical therapist certified to treat without a referral to complete continuing education as a condition of certificate renewal. Section 40.63(b) (relating to continuing education for direct access certificateholder) explicitly provides that completion of required continuing education is a condition of certificate renewal for a physical therapist certified to treat without a referral. IRRC also noted that section 7.2 of the act (63 P. S. § 1307.2) requires a licensed physical therapist to complete continuing education as a condition of license renewal and that section 9.1(j) of the act requires a certified physical therapist assistant to complete continuing education as a condition of certificate renewal. By contrast, however, proposed §§ 40.19 and 40.191 (relating to renewal of physical therapist license; and renewal of certification) did not have these explicit requirements. Because it is concerned that these sections do not provide direct notice that would increase clarity and help avoid licensee failures, IRRC recommended that these sections be amended to clearly state that the Board will not renew without completion of continuing education. The Board revised § 40.19(c)(5) to provide that the Board will not renew a license if the physical therapist has not completed the required continuing education and § 40.191(c)(5) to provide that the Board will not renew the certificate if the physical therapist assistant has not completed the required continuing education.

 The Board proposed to amend § 40.11 (relating to educational requirements for licensure by examination) to require an applicant to have graduated from a physical therapy program accredited by the Commission on Accreditation in Physical Therapy Education (CAPTE) or ''another National organization recognized by the Board that accredits physical therapy programs.'' IRRC questioned what was meant by this phrase and how an applicant would be able to identify an organization. Currently, CAPTE is the only accreditation agency recognized by the United States Department of Education and the Council for Higher Education Accreditation to accredit entry-level physical therapist and physical therapist assistant education programs. The Board included the additional language to allow for development of other accrediting organizations. If there are organizations and the Board recognizes them, it will identify those organizations on the Board's web site and in its application instructions.

 Because § 40.12(b) (relating to application for licensure) requires an applicant to ''apply on forms supplied by the Board,'' IRRC next questioned whether those forms are available online and, if so, suggested that the web address be included in the subsection. The forms are available on the Boards web site at www.dos.state.pa.us/physther. Because the web address has changed in the past and may very likely be changed again, the Board did not include it in this subsection.

 IRRC noted that section 6(i)(2) of the act (63 P. S. § 1306(i)(2)) requires an applicant who has been educated outside the United States to ''provide proof of holding an unrestricted license in the country where the applicant was educated'' and questioned whether the deletion of § 40.17(3) (relating to foreign-educated physical therapists applying to take the licensure examination and pursue a clinical experience) is consistent with the act. Section 40.17(3) provides that an applicant shall provide written documentation of authorization to practice as a physical therapist without limitations in the country where the professional education took place. In drafting the proposed rulemaking, the Board wanted to allow for applicants who fully completed training in a foreign country and then came to the United States prior to becoming licensed or otherwise authorized to practice in that country. In doing so, the Board overlooked section 6(i)(2) of the act. The Board did not delete § 40.17(3) and did not renumber this section. IRRC further noted that section 6(i)(3) of the act requires an applicant who has been educated outside of the United States to provide satisfactory evidence that the applicant's education is substantially equivalent to the education of physical therapists educated in an accredited program approved by the Board. This section further provides that, as an alternative to graduation from a program accredited by the same accrediting agency approved by the Board, the applicant shall: (1) show graduation from a physical therapist education program that prepares the applicant to engage without restriction in the practice of physical therapy; (2) provide written proof that the applicant's school of physical therapy is recognized by its own ministry of education; (3) undergo a credentials evaluation as directed by the Board to determine that the candidate has met uniform criteria for education requirements; and (4) complete additional education as required by the Board. IRRC suggested that the Board review § 40.17 for consistency with section 6(i)(3) of the act. The regulations address substantially equivalent foreign education in § 40.17(5). The Board revised paragraph (5) to provide that the applicant shall show substantial equivalence by either showing that the education program is accredited as provided in § 40.11(a) or securing a credentials evaluation. Without satisfying the requirements of § 40.17(2) that the program prepares the applicant to engage without restriction in the practice of physical therapy and is recognized by the authorizing agency or entity of the jurisdiction, the program cannot be accredited by CAPTE. With this revision, § 40.17 is consistent with section 6(i) of the act. Notwithstanding this revision, very few applicants will be able to take advantage of it. CAPTE currently accredits two physical therapist education programs in Ontario and one program in Scotland.

 IRRC noted that § 40.191(j) provides that a physical therapist assistant who provides services after the certificate has expired but before it has been reactivated is subject to disciplinary action under section 9.1(d) and (f) of the act. IRRC suggested that a similar provision be included for physical therapists. The Board added § 40.20(f) (relating to inactive status of physical therapist license) to provide analogously that a licensed physical therapist who has not renewed the license may not practice until the license is reactivated and that one who does so is subject to disciplinary action under sections 4(a) and 11(6) of the act (63 P. S. §§ 1304(a) and 1311(6)). In considering this comment, the Board also realized that § 40.20(d), which imposes a late fee upon reactivation for a licensee who has practiced while the license was inactive, is not sufficiently clear regarding those who did not practice. The Board amended this subsection to provide that an applicant for reactivation will not be assessed a late fee for prior renewal periods during which the licensee did not practice. An analogous provision for physical therapist assistants is in § 40.191(h). In reviewing this comment, the Board also reconsidered proposed § 40.20(e) pertaining to reactivation of a license that has been inactive for more than 5 years. Upon further consideration, the Board concluded that requiring practice in another jurisdiction throughout the entire 5-year period immediately preceding application for reactivation, as the only alternative to passing the licensure examination anew, is excessively onerous. Instead, the Board reduced that requirement to practice for 36 months of the prior 5 years. The Board also added § 40.191(k) to provide an analogous standard for a physical therapist assistant seeking to reactivate after 5 years.

 Previously, physical therapists who were certified to treat patients without a referral had been required to complete at least 20 hours of continuing education during each renewal cycle. Act 38 amended the act to require licensed physical therapists to complete at least 30 hours of continuing education during each renewal cycle. The Board proposed requiring physical therapists to complete continuing education during the January 1, 2011, through December 31, 2012, renewal cycle and would have amended § 40.63(b) to reflect this increased number of hours. However, to provide greater clarity, the Board provided that during renewal periods prior to January 1, 2013, a direct access holder would only need to complete 20, not 30, hours. Because the proposed rulemaking was not published until September 2011, IRRC suggested revising this date. The Board revised § 40.63(b) to provide that the increased number of hours of continuing education does not apply to direct access certificateholders prior to January 1, 2013, and revised § 40.67(a) (relating to continuing education for licensed physical therapist) to provide that the continuing education requirement for physical therapists begins January 1, 2013. Licensed physical therapists and certified physical therapist assistants will need to complete required continuing education during the January 1, 2013, through December 31, 2014, renewal cycle as a condition for renewal for the January 1, 2015, through December 31, 2016, renewal cycle.

 In discussing this provision, the Board noticed that, although § 40.63(b) exempts new direct access certificateholders from the continuing education requirement prior to the first renewal of the certificate of authorization, the Board had not previously considered when the continuing education requirement begins for new licensed physical therapists or new certified physical therapist assistants. Because a licensee has adequately demonstrated competence to practice by passing the licensure examination and becoming licensed and that competence is generally not lost during the period (of up to 2 years) prior to first renewal, licensing boards in the Bureau of Professional and Occupational Affairs have typically exempted licensees from the continuing education requirement during the biennial renewal cycle in which the licensee was first licensed. Accordingly, the Board added § 40.67(a)(5) and § 40.192(a)(5) (relating to continuing education for certified physical therapist assistant) to exempt newly licensed physical therapists and newly certified physical therapist assistants, respectively, from the continuing education requirement during the biennium in which first licensed or certified.

 Proposed § 40.67(a)(4) addressed a request for a waiver of the continuing education requirement based upon physical disability or illness or undue hardship. IRRC noted that this paragraph provided that a waiver ''will not be granted unless a written request is submitted by the licensee; or in case of physical disability or illness, by a physician . . . , or both,'' and questioned under what circumstances the physician would submit the request for waiver. This provision and its analog for physical therapist assistants in § 40.192(a)(4) were poorly drafted. Although the Board recognizes that a request for a waiver might be made by someone else (such as a family member or person with power of attorney), the Board intended that a physician provide only the documentation to support the physical disability or illness. Accordingly, the Board revised these paragraphs to provide that a waiver will not be granted ''unless a written request is submitted by or on behalf of the [applicant for waiver]. In case of physical disability or illness, the request must include supporting documentation provided by a physician'' and deleted the references to ''or both.'' The Board similarly revised § 40.63(g) for waiver requests from direct access certificateholders.

 IRRC pointed to a commentator who expressed concern with the requirement of § 40.67(b)(1) that proof of completion of continuing education consist of a certificate of completion, because at a recent program the American Physical Therapy Association (APTA) did not issue a certificate of completion. The Board notes that APTA, a preapproved provider, will later issue a certificate of completion upon request. Notwithstanding, to make the requirements clearer, in addition to beginning this provision with ''in general,'' the Board revised § 40.67(b)(1) and the analogous § 40.191(b)(1) for physical therapist assistants to provide that the proof completion must consist of a certificate of completion ''or other documentation'' issued by the course or program provider.

 IRRC expressed concern about the waiver provisions of §§ 40.67(d)(2) and 40.192(d)(2) that permit a continuing education provider to apply for approval less than 60 days before the course or program is presented. The Board notes that this is the existing practice for continuing education providers for direct access certificateholders and that it has not experienced complaints of certificateholders who have said that they were not treated fairly by providers who advertised the course prior to receiving approval. Notwithstanding this history, the Board does not want to unnecessarily encourage providers to wait until the last minute to apply for approval. Therefore, the Board deleted the waiver provision from these sections. In further considering the continuing education provider approval process, the Board realized that §§ 40.67(d)(2)(ii) and 40.192(d)(2)(ii) contained redundancies for multiple offering and multiple locations of a course and revised them accordingly.

 In addressing IRRC's comment about an applicant trained in a foreign educational program accredited by CAPTE, the Board reviewed the provisions for preapproved providers of continuing education who are accredited by CAPTE. During this discussion, the Board noted that the correct term used by CAPTE is a ''physical therapist educational program'' and not a ''physical therapy program.'' Sections 40.67(d)(1)(i)(C) and 40.192(d)(1)(i)(C) were revised accordingly. The Board revised these provisions to make clear that both physical therapists and physical therapist assistants may obtain continuing education provided by either physical therapist or physical therapist assistant educational programs. While reviewing the preapproved providers and comparing requirements for physical therapists in § 40.67 and for physical therapist assistants in § 40.192, the Board noted that it preapproved the American Heart Association and the Red Cross only in § 40.192(a)(1)(i)(D) for the purpose of providing their educational programs in identifying and responding to emergency health conditions because the Board requires this continuing education for physical therapist assistants only. However, although not required, this type of continuing education is also appropriate for physical therapists. Therefore, the Board added § 40.67(d)(1)(i)(D) to include these organizations for this purpose.

 IRRC questioned the Board's inclusion of continuing competence activities to complete the continuing education requirement. Section 7.2 of the act requires licensed physical therapist to complete ''continuing physical therapy education as approved by the board'' as a condition of renewal and section 9.1(j) of the act requires certified physical therapist assistants to complete ''continuing physical therapy education as approved by the board in accordance with standards and criteria established by the board by regulation.'' Except for the prohibition against credit for courses in office management or practice building for licensed physical therapists, the act does not provide further indication of what is acceptable continuing education. As noted in proposed §§ 40.67(e) and 40.192(e), continuing education is a structured process of education beyond professional entry-level education that is applicable to the practice of physical therapy and is designed or intended to support the continuous development of physical therapists and to maintain and enhance their professional competence. Because the purpose of mandatory continuing education is to assure that licensees remain competent to practice, the Board views continuing competence activity as a form of continuing education. As proposed in §§ 40.68(a)(3) and 40.193(a)(3), the Board would be guided in approving continuing competence activities by, among other principles, the belief that a physical therapist or physical therapist assistant should have a wide variety of activities available to demonstrate competence. Allowing licensed physical therapists and certified physical therapist assistants to satisfy the continuing education requirement in part in this manner serves the purpose of the act's continuing education requirement and is consistent with the language and other provisions of the act. Notwithstanding the Board's view that it does have authority to do so, the Board concluded that it should not, at this time, promulgate regulations authorizing continuing education credit for continuing competence activities. Accordingly, the Board has withdrawn §§ 40.68 and 40.193.

 In proposing to allow for continuing education credit through continuing competence, the Board consolidated under that topic continuing education activities that were not traditional courses or programs of continuing education. Although obviously of longer term than traditional continuing education programs or courses, residencies, fellowships and advanced specialty credentialing programs are provided through specific providers and have traditionally been considered as continuing education. Because these programs are by definition credentialed by APTA and the Board preapproved continuing education programs provided by APTA, the Board determined that APTA-credentialed programs should be included as preapproved providers for those specific activities. The Board added to the list of preapproved providers in § 40.67(d)(1)(e)—(g) organizations credentialed by APTA to confer a fellowship in a specialty area, those organization credentialed by APTA to offer a residency program and those organizations credentialed by APTA for specialty certification, respectively. These activities were proposed in § 40.68(c)(1)—(3) as continuing competence. Because these programs typically extend over a period of time, the Board generally considered how it should address continuing education courses and programs that extend beyond a single biennial renewal cycle. The Board determined that for consistency and ease of administration, it should follow the completion date of the course or program and award credit for the biennial renewal period in which the course or program was finally completed and added §§ 40.67(c)(6) and 40.192(c)(6) to do so. Because credit will be available as continuing education from a preapproved provider, the Board has not provided for continuing education credit to be available for becoming an APTA-recognized credentialed clinical instructor or instructor trainer as provided in proposed §§ 40.68(c)(6) and 40.193(c)(6) or for a physical therapist assistant receiving advanced proficiency designation from APTA as provided in proposed § 40.193(c)(1).

 Continuing education credit has traditionally been available for authoring various publications relevant to professional practice. Because it has deleted continu- ing competence activities, the Board revised proposed §§ 40.67(c) and 40.192(c) to allow continuing education credit for authoring publications and replaced proposed §§ 40.67(e) and 40.192(e) to set the appropriate standards. Sections 40.67(e)(1) and 40.192(e)(1) set up the process by providing that the physical therapist or physical therapist assistant must apply to the Board for credit before the end of the renewal period and provide all necessary supporting documentation. Under §§ 40.67(e)(2) and 40.192(e)(2), the amount of credit will be 1 contact hour for each hour spent in research or writing, subject to maximum credit limitations for specific types of authorship. Sections 40.67(e)(3) and 40.192(e)(3) authorize up to 15 contact hours of credit for authoring or editing a book, up to 10 contact hours for authoring or editing a chapter of a book, up to 10 contact hours for authoring or reviewing a peer-reviewed article and up to 5 contact hours for authoring a non-peer-reviewed article in a physical therapy publication. Finally, §§ 40.67(e)(4) and 40.192(e)(4) provide that credit will be awarded only for the biennial renewal period in which the publication was published.

 Regarding § 40.162 (relating to application for certification), IRRC questioned why the Board would require a physical therapist assistant applicant over 18 years of age but not yet 20 years of age to prove the capability to accept and handle the responsibilities appurtenant to certification, when section 9.1(a)(4) of the act merely requires an applicant to be ''at least 18 years of age unless otherwise determined by the board.'' Until reduced to 18 years of age by Act 38, the act required an applicant to be at least 20 years of age unless otherwise determined by the Board. Section 40.162(a)(1) formerly required an applicant to be ''at least 20 years of age unless otherwise determined by the Board that the candidate has proved the capability to accept and handle the responsibilities appurtenant to registration.'' Upon further consideration, the Board concluded that few applicants would complete the 2-year post-high school education prior to reaching 20 years of age. To be consistent with the act, the Board amended § 40.162(1) to replace 20 years of age with 18 years of age.

 Proposed §§ 40.165(b)(3) and 40.166(b)(5) (relating to authorization to provide services as a physical therapist assistant under indirect supervision; and temporary certificate to provide services as a physical therapist assistant) provided that the Board will grant the application if the applicant meets certain criteria and ''otherwise complies with this subchapter.'' Unless that standard is clarified, IRRC suggested deleting these paragraphs. The Board intended these provisions to avoid being obliged to grant the application when there are grounds for denial separate from qualifications, such as a prior criminal or disciplinary record. To set this standard, the Board deleted those paragraphs and revised subsection (b) to clarify that it will grant the application of an applicant meeting the criteria ''unless there are grounds to deny the application under § 40.181 (relating to refusal, suspension or revocation of certification).''

 In proposed § 40.19(b), the Board included the provision that the failure of the Board to send renewal notices does not relieve the licensed physical therapist of the obligation to renew. Although the Board had not proposed an analogous provision for a certified physical therapist assistant, IRRC recommended doing so in § 40.191(b). The Board revised § 40.191(b) to additionally provide: ''Failure of the Board to send or of the certified physical therapist assistant to receive a biennial renewal application does not relieve the certified physical therapist assistant of the biennial renewal responsibility.''

 IRRC further noted that the Board incorrectly referred to ''license renewal'' rather than ''certificate renewal'' in § 40.191(c). The Board has corrected this in the final-form rulemaking. Because other jurisdictions may call the appropriate credential by a variety of names, IRRC suggested that the Board revise § 40.191(c)(2) to not be limited to licenses that shall be disclosed upon renewal. The Board revised this provision to require a physical therapist assistant applying for renewal of the certificate to disclose a license, ''certificate, registration or other authorization'' to provide services as a physical therapist assistant in another jurisdiction. In reviewing this comment, the Board realized that § 40.191(h) mistakenly referred to certificate renewal rather than reactivation and revised this subsection to correctly refer to an applicant for reactivation, rather than for renewal. Similarly, the Board realized that it had not corrected all references of a physical therapist assistant practicing, rather than providing, services as a physical therapist assistant. The Board revised § 40.191(c), (d), (e) and (i) to correct this oversight.

 Some commentators objected to the required continuing education as imposing an unnecessary burden on health care costs. Because the requirement to complete continuing education is imposed by the act, the Board is obligated to implement it.

 An individual commentator inquired how often the Board meets to be able to review and approve continuing education programs and courses in a more timely manner. As it has been doing with continuing education for direct access certificateholders, the Board will utilize a committee of Board members to review applications for course approvals without regard to the Board meeting schedule. An appeal taken from the committee's decision would be considered by the full Board.

 An individual commentator objected to the requirement of § 40.173(c)(1) (relating to supervision of physical therapist assistant by licensed physical therapist), which provides that when care is delivered in an inpatient rehabilitation center or long-term acute care hospital setting, the physical therapist assistant shall be under the direct on-premises supervision of a licensed physical therapist because that setting has the greatest availability of other care when needed. By contrast, the least alternative care is available for home health care under § 40.173(c)(6), which provides that for home health care, a licensed physical therapist shall make an onsite visit and actively participate in the treatment of the patient at least every seven patient visits or every 14 days, whichever occurs first. PPTA correctly pointed out a typographical error in the proposed preamble that stated that physical therapist involvement was required every 17 days. The Board notes that if a physical therapist assistant makes multiple visits with a patient in a single day, each of those visits count as a separate visit under Medicare. However, the Board does not view that as sufficient reason to require the licensed physical therapist to make more frequent onsite visits to actively participate in the treatment of the patient. Accordingly, the Board provided that multiple visits on a single day count only as a single patient visit for purposes of determining whether the licensed physical therapist is required to make an onsite visit. The commentator also objected to imposing the same level of required continuing education on physical therapist assistants as on physical therapists, despite the differential in pay. The commentator objected to the heightened number of hours of required continuing education compared to some other states and the resultant financial impact on licensees. The commentator objected to excluding office management and practice building from continuing education. Because these standards are in the act, the Board is required to implement them.

 Another individual commentator suggested that to streamline the process the Board should permit continuing education providers other than those identified as preapproved under proposed § 40.67(d)(1)(i) or § 40.192(d)(1)(i) to be considered approved if separately approved in another jurisdiction. Because the standards in other jurisdictions vary, the Board is not able to rely upon approval from another jurisdiction. Because the vast majority of continuing education will be provided by the identified preapproved providers, the Board does not believe that the overall process would be substantially streamlined.

 PPTA noted that the Federation of State Boards of Physical Therapy, which administers the National licensure examination, is shifting to fixed-date testing administered approximately five times each year. As a result, applicants who fail would be disadvantaged by § 40.14(a) (relating to examination; failure; reexamination), which provides that an applicant may retake the examination after 60 days but within 1 year, by not being able to sit for the next administration of the examination. Because the requirement to wait 60 days is set by section 6(c) of the act, the Board cannot reduce the waiting period. The Board notes that this is a reduction from the current waiting period of 6 months.

 PPTA suggested that proposed § 40.67(a)(1) should require that the 30 contact hours of continuing education include at least 10 contact hours in evaluative procedures as is required under § 40.63(b) for direct access certificateholders. As part of standard physical therapy practice, physical therapists perform patient evaluations and re-evaluation on a regular basis. Evaluative procedures are taught as part of prelicensure education programs and are included within the definition of ''physical therapy'' in section 2 of the act (63 P. S. § 1302). Because imposing this requirement would be overly prescriptive and effectively force many licensees into being direct access certificateholders, the Board chose not to do so. However, the Board revised §§ 40.67(a)(1) and 40.192(a)(1) to require at least 2 hours in law and ethics applicable to the profession.

 PPTA noted that proposed § 40.173(d) construed the emergency situations for supervision under section 9.1(i) of the act to apply to certified physical therapist assistants and not just to those who are authorized under section 9.1(c)(4) of the act and § 40.165 to provide services under less than direct on-premises supervision. PPTA objected that a broad interpretation would permit even the most newly licensed physical therapist who is not authorized to provide services under indirect supervision to become the sole provider of physical therapy services without supervision in situations when the physical therapist is away due to an emergency. PPTA suggested that, in the interest of patient protection, the Board should reverse this construction. The Board agreed with PPTA and revised § 40.173(d) to limit the application of section 9.1(i) of the act only to practice by a physical therapist assistant who is authorized to provide services under indirect supervision in those instances where the supervising physical therapist is absent due to an unanticipated emergency.

 Other public comments have been included in the previously stated responses.

 Additionally, while reviewing the comments, the Board noted that, although it had proposed amending § 40.5 (relating to fees) to delete the fees for athletic trainers because athletic trainers are no longer regulated by the Board, it did not propose to amend Subchapter D (relating to child abuse reporting requirements) to delete references to athletic trainers. In the final-form rulemaking, the Board amends §§ 40.202—40.205 and 40.207 to delete the references to athletic trainers.

Fiscal Impact and Paperwork Requirements

 The requirement to complete 30 hours of continuing education will result in increased costs and paperwork requirements for licensed physical therapists and physical therapist assistants. The requirement to maintain professional liability insurance will result in increased costs and paperwork requirements for those physical therapists that are not direct access certificateholders who have been required to carry insurance since 2005. The final-form rulemaking will not have adverse fiscal impact on the Commonwealth or its political subdivisions and will not impose additional paperwork requirements upon the Commonwealth, political subdivisions or the private sector.

Effective Date

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

Statutory Authority

 The final-form rulemaking is authorized under section 3(a) of the act (63 P. S. § 1303(a)) and section 16 of Act 38.

Regulatory Review

 Under section 5(a) of the Regulatory Review Act (71 P. S. § 745.5(a)), on September 6, 2011, the Board submitted a copy of the notice of proposed rulemaking, published at 40 Pa.B. 4962, 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 November 14, 2012, the final-form rulemaking was deemed approved by the HPLC and the SCP/PLC. Under section 5.1(e) of the Regulatory Review Act, IRRC met on November 15, 2012, and approved the final-form rulemaking.

Additional Information

 Persons who require additional information about the final-form rulemaking should submit inquiries to Regulatory Unit Counsel, Department of State, P. O. Box 2649, Harrisburg, PA 17105-2649, (717) 783-7134, st-physical@ pa.gov.

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) and regulations promulgated thereunder, 1 Pa. Code §§ 7.1 and 7.2.

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

 (3) The amendments to this final-form rulemaking do not enlarge the scope of proposed rulemaking published at 41 Pa.B. 4962.

 (4) The final-form rulemaking adopted by this order is necessary and appropriate for the administration of the act.

Order

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

 (a) The regulations of the Board, 49 Pa. Code Chapter 40 are amended by adding §§ 40.19, 40.20, 40.67, 40.69, 40.165, 40.166, 40.173, and 40.192; deleting § 40.62; and amending §§ 40.1, 40.5, 40.11, 40.12, 40.14, 40.17, 40.53, 40.61, 40.63, 40.152, 40.161—40.164, 40.171, 40.181, 40.191, 40.202—40.205 and 40.207 to read as set forth in Annex A, with ellipses referring to the existing text of the regulations.

 (Editor's Note: Sections 40.202—40.205 and 40.207 were not included in the proposed rulemaking published at 40 Pa.B. 4962.)

 (Editor's Note: Proposed §§ 40.68 and 40.193 included in the proposed rulemaking published at 40 Pa.B. 4962 have been withdrawn by the Board).)

 (b) The Board shall submit this order and Annex A to the Office of Attorney General and the Office of General Counsel for approval 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) The final-form rulemaking shall take effect upon publication in the Pennsylvania Bulletin.

SUSAN L. WHITNEY, PT, 
Chairperson

 (Editor's Note: For the text of the order of the Independent Regulatory Review Commission relating to this document, see 42 Pa.B. 7364 (December 1, 2012).)

Fiscal Note: Fiscal Note 16A-6514 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 40. STATE BOARD OF PHYSICAL THERAPY

Subchapter A. PHYSICAL THERAPISTS

GENERAL PROVISIONS

§ 40.1. Definitions.

 The following words and terms, when used in this subchapter, have the following meanings, unless the context clearly indicates otherwise:

APTA—The American Physical Therapy Association.

Act—The Physical Therapy Practice Act (63 P. S. §§ 1301—1313).

Board—The State Board of Physical Therapy.

CAPTE—The Commission on Accreditation in Physical Therapy Education.

Contact hour—A unit of measure equaling 60 minutes of participation in an approved continuing education course or program. For courses taken through an academic institution, a semester credit is equal to 15 contact hours.

Direct on-premises supervision—The physical presence of a licensed physical therapist in the facility, including affiliated buildings in immediate proximity, who is immediately available to exercise supervision, direction and control.

FSBPT—The Federation of State Boards of Physical Therapy.

Physical therapist—A person licensed under the act and this chapter to provide physical therapy services without restriction in this Commonwealth.

Supportive personnel—Persons other than physical therapist assistants who aid and assist a physical therapist but whose activities do not require the formal education or knowledge of a physical therapist or physical therapist assistant. The term does not include secretarial, administrative and other personnel who are not involved in direct patient care.

§ 40.5. Fees.

 The following fees are charged by the Board:

Physical therapist:
Application for licensure by examination/ endorsement  $30
Application for licensure through foreign training  $45
Verification of licensure or temporary permit  $15
Certification of examination scores or licensure  $25
Temporary license  $15
Biennial renewal   $90
Application for Certificate to Practice Physical Therapy without a referral   $30
Biennial renewal of Certificate to Practice Physical Therapy without a referral   $45
Application for approval of continuing education provider or program (per each course offered) $40
Application for reactivation of inactive license  $30
Physical therapist assistant:
Initial application for certification by exam or endorsement  $30
Certification of exam scores or certification  $25
Biennial renewal of certification  $45
Verification of certification  $15
Initial application for certification to provide services under indirect supervision  $30
Application for temporary certification  $15
Application for reactivation of inactive certificate  $30

LICENSURE

§ 40.11. Educational requirements for licensure by examination.

 (a) Except as provided in § 40.17 (relating to foreign-educated physical therapists applying to take the licensure examination and pursue a clinical experience), an applicant for license by examination shall have graduated from a physical therapy program accredited by CAPTE or by another National organization recognized by the Board that accredits physical therapy programs.

 (b) An applicant completing the professional study of physical therapy after 2002 shall hold a minimum of a master's degree in physical therapy from a regionally accredited institution of higher education. An applicant completing the professional study of physical therapy between January 1, 1967, and December 31, 2002, shall hold a minimum of either:

 (1) A baccalaureate degree in physical therapy from a regionally accredited institution of higher education.

 (2) A baccalaureate degree from a regionally accredited institution of higher education and a post-baccalaureate certificate in physical therapy.

§ 40.12. Application for licensure.

 (a) Evidence, satisfactory to the Board, shall be submitted indicating that the applicant:

 (1) Is at least 20 years of age, unless otherwise waived upon application to and review by the Board.

 (2) Is of good moral character.

 (3) Is not addicted to the habitual use of alcohol, narcotics or other habit forming drugs.

 (4) Has met the professional requirements in § 40.11 (relating to educational requirements for licensure by examination).

 (b) The applicant shall apply on forms supplied by the Board, answer all questions fully and provide all documentation required under subsection (a).

 (c) The applicant shall pay the fee in § 40.5 (relating to fees) for application for physical therapist licensure by examination/endorsement.

§ 40.14. Examination; failure; reexamination.

 (a) Applicants shall successfully pass, to the satisfaction of the Board, the examination approved by the Board. In cases of failure at the first examination, the applicant shall have, after the expiration of 60 days and within 1 year from the date of the first failure, the privilege of a second examination, with the payment of an additional examination fee charged by the vendor.

 (b) After a second or successive failure to pass the examination, an applicant desiring to take a third or successive examination shall make a new application within the meaning of section 5 of the act (63 P. S. § 1305) within 6 months from the date of the last failure. However, prior to filing a new application for examination, the Board may require evidence of additional training. If the Board determines that the applicant will be permitted to take a third or successive examination, the Board may authorize in connection with a written examination an oral or practical examination, or both, to test the knowledge and competence of the applicant.

 (c) The granting of permission by the Board to take a third or successive examination is at all times subject to the applicant otherwise qualifying under the requirements in force at the time permission to take the examination is sought.

 (d) An applicant may not take the examination more than three times in a consecutive 12-month period.

§ 40.17. Foreign-educated physical therapists applying to take the licensure examination and pursue a clinical experience.

 To be eligible to take the examination for licensure, foreign-educated applicants for licensure shall comply with the following conditions:

 (1) The applicant shall submit evidence, satisfactory to the Board, indicating that the applicant has met the requirements in § 40.12(a)(1)—(3) and (b) (relating to application for licensure) and pay the fee in § 40.5 (relating to fees) for application for physical therapist licensure through foreign training.

 (2) The applicant shall provide written documentation that the applicant has graduated from a physical therapist education program that prepares the applicant to engage without restriction in the practice of physical therapy and that the school of physical therapy is recognized by the authorizing agency or entity of the jurisdiction in which the school is situated.

 (3) The applicant shall provide written documentation of authorization to practice as a physical therapist without limitations in the country where the professional education took place.

 (4) The applicant shall provide documentation of legal authorization to seek employment in the United States or its territories.

 (5) The applicant shall provide satisfactory evidence that the applicant's education is substantially equivalent to the education of physical therapists educated in an accredited program as set forth in § 40.11 (relating to educational requirements for licensure by examination) by either showing that the education program is accredited as provided in § 40.11(a) or securing a credentials evaluation from a recognized and accredited evaluation agency approved by the Board. If the applicant's education was completed before 1998, the credentials evaluation must demonstrate that the applicant has met the requirement of at least 120 semester credit hours of which at least 42 credit hours must be in general education subjects and 69 credit hours must be in professional education subjects. If the applicant's education was completed in 1998 or later, credentials evaluation must demonstrate that the applicant has met the requirements of at least 150 semester hours of which at least 60 credit hours must be in general education subjects and 90 credit hours must be in professional education subjects. If an applicant has deficiencies in general education or professional education, the applicant can correct the deficiencies as follows:

 (i) General education. A minimum of one semester course shall be successfully completed in each of the following areas of general education unless otherwise noted:

 (A) Humanities.

 (B) Physical science (two courses each in chemistry and physics including laboratory sessions).

 (C) Biological science.

 (D) Social science.

 (E) Behavioral science.

 (F) Mathematics.

 (ii) Professional education. The applicant shall complete 69 credit hours of professional education the content of which includes:

 (A) Basic health science including:

 (I) Human anatomy (specific to physical therapy).

 (II) Human physiology (specific to physical therapy).

 (III) Neuroscience.

 (IV) Kinesiology or functional anatomy.

 (V) Pathology.

 (B) Medical and clinical science coursework including the following:

 (I) Clinical medicine pertinent to physical therapy including:

 (-a-) Neurology.

 (-b-) Orthopedics.

 (-c-) Pediatrics.

 (-d-) Geriatrics.

 (-e-) Cardiopulmonary.

 (-f-) Pharmacology.

 (II) Physical therapist coursework must include:

 (-a-) Examination, evaluation and intervention pertaining to the integumentary system.

 (-b-) Examination, evaluation and intervention pertaining to the musculoskeletal system.

 (-c-) Examination, evaluation and intervention pertaining to the neuromuscular system.

 (-d-) Examination, evaluation and intervention pertaining to the cardiopulmonary system.

 (iii) Clinical education. Clinical education shall include physical therapist-supervised application of physical therapy theory, examination, evaluation and intervention. The applicant shall have a minimum of two full-time clinical internships of at least 800 hours total, which are supervised by a physical therapist. The maximum number of full-time clinical education credits is 23.

 (iv) Related professional coursework. Content is required in the following nine areas:

 (A) Professional behaviors.

 (B) Administration.

 (C) Community health.

 (D) Research and clinical decision making.

 (E) Educational techniques.

 (F) Medical terminology.

 (G) Communication (related to client/patient care).

 (H) Legal and ethical aspects of physical therapy practice.

 (I) Psychosocial aspects in physical therapy practice.

 (6) General educational deficiencies. The applicant may correct general educational deficiencies in the areas specified in paragraph (5)(i) by either:

 (A) Pursuing studies in an accredited college or university. Upon completion of studies, the applicant shall submit an official transcript to the Board.

 (B) Attaining college credit through successful completion of the following examinations offered by the College Level Examination Program (CLEP). No more than 30 credits may be obtained through CLEP.

 (I) The CLEP General Examination may be used to satisfy the requirements in paragraph (5)(i) for credit hours if passing scores are received in the following subjects:

General Examination College Level Credit
English Composition with Essay 6
Mathematics 3
Humanities 6
Natural Sciences
Biological Sciences (subscore) 3
Physical Sciences (subscore) 3
Social Sciences 6

 (II) The CLEP Subject Examination may be used to satisfy the requirements in paragraph (5) for credit hours if passing scores are received in the following subjects:

Subject Examination College Level Credit
Analysis and Interpretation of Literature 3
College Algebra 3
English Literature 3
Foreign Language
French—Levels I and II 6
German—Levels I and II 6
Spanish—Levels I and II 6
Freshman English 3
English Composition 4
General Biology 3
General Chemistry 3
General Psychology 2
Human Growth & Development 2
Introduction to Management 2
Introduction to Sociology 2
Statistics 2
Trigonometry 2
Western Civilization 3

 (III) The applicant is responsible for directing that CLEP report his examination scores to the Board.

 (7) Clinical experience. The applicant may correct a deficiency in clinical experience by obtaining, at the Board's discretion, up to 1 year of supervised clinical experience in the United States, as approved by the Board.

 (i) To apply for approved supervised clinical experience the applicant shall:

 (A) Submit a notarized application signed by the sponsoring physical therapist who will supervise the applicant in the institution in which the applicant will be pursuing the clinical experience.

 (B) Arrange for and have a personal interview with a member of the Board and have the application forms signed and approved by the Board member.

 (C) Submit a passport-size photograph for the purpose of identification. The applicant and a sponsor shall both sign either the photograph or the paper on which the photograph is mounted.

 (ii) The applicant may obtain the required clinical experience while pursuing studies to correct educational deficiencies in the areas specified in paragraph (5).

 (iii) The applicant shall submit a letter from the supervising physical therapist in the institution where the supervised clinical experience was completed, certifying the applicant's clinical competence.

§ 40.19. Renewal of physical therapist license.

 (a) A license issued under this subchapter expires on December 31 of each even-numbered year unless renewed for the next biennium.

 (b) If a licensee's mailing address changes, the licensee shall notify the Board in writing within 10 days thereafter. Notice of renewal will be forwarded to the licensee's last known address on file with the Board. Failure of the Board to send or of the licensee to receive a biennial renewal application does not relieve the licensee of the biennial renewal responsibility.

 (c) A licensee applying for biennial license renewal shall:

 (1) Complete and submit the renewal application, including payment of the biennial renewal fee in § 40.5 (relating to fees) for application for biennial renewal of physical therapist license.

 (2) Disclose any license to practice as a physical therapist in another state, territory, possession or country.

 (3) Disclose any disciplinary action pending before the appropriate healthcare licensing authority in any other jurisdiction or taken since the most recent application for renewal, whether or not licensed to practice in that other jurisdiction.

 (4) Disclose any pending criminal charges and any finding or verdict of guilt, admission of guilt, plea of nolo contendere or other criminal conviction since the most recent application for renewal.

 (5) Verify that the licensee has complied with the continuing education requirements mandated by section 7.2 of the act (63 P. S. § 1307.2) during the biennial period immediately preceding the period for which renewal is sought in accordance with § 40.67 (relating to continuing education for licensed physical therapist). The Board will not renew a license if the licensee has not completed the continuing education required under section 7.2 of the act during the biennial period immediately preceding the period for which renewal is sought.

 (6) Verify that, if practicing as a physical therapist in this Commonwealth, the licensee maintains professional liability insurance coverage in accordance with section 9(b)(4) of the act (63 P. S. § 1309(b)(4)) and § 40.69 (re- lating to professional liability insurance).

§ 40.20. Inactive status of physical therapist license.

 (a) A physical therapist license will become inactive upon either of the following:

 (1) The licensee in writing affirmatively requests the Board to place licensure on inactive status. Written confirmation of inactive status will be forwarded to the licensee.

 (2) The licensee fails to renew the license by the expiration of the renewal period.

 (b) A physical therapist whose license has expired or been placed on inactive status may not practice as a physical therapist in this Commonwealth until the license has been reactivated.

 (c) To reactivate an inactive license, the licensee shall apply on forms supplied by the Board, answering all questions fully. The licensee shall:

 (1) Include the documentation required under § 40.67(b) (relating to continuing education for licensed physical therapist) for the immediately preceding biennium, which may be completed during the current biennium. Unless waived by the Board under § 40.67(a)(4), the Board will not reactivate a license until the required continuing education for the preceding biennium has been successfully completed.

 (2) Pay the current renewal fee and the reactivation application fee specified in § 40.5 (relating to fees).

 (3) Verify that the licensee did not practice as a physical therapist in this Commonwealth while the license was inactive.

 (d) A licensee who does not make the verification required under subsection (c)(3) shall also pay prior biennial renewal fees and late fees as required under this subsection. Unless previously paid, the licensee shall pay the renewal fee for each biennial renewal period after the license became inactive and during which the licensee practiced as a physical therapist in this Commonwealth. The licensee shall also pay a late fee of $5 per month or part of the month from the first date the licensee practiced as a physical therapist in this Commonwealth after the license became inactive until the date the licensee files a fully-completed reactivation application. The applicant for license reactivation will not be assessed a fee or penalty for preceding biennial periods in which the licensee did not engage in practice as a physical therapist in this Commonwealth. Payment of a late fee does not preclude the Board from taking disciplinary action for practicing as a physical therapist without a current license.

 (e) In addition to the other requirements of this section, a licensee whose license has been inactive for 5 years or more shall demonstrate current competence to practice as a physical therapist by at least one of the following:

 (1) Successful completion of the licensure examination required under § 40.13 (relating to areas of examination) and section 6(b) of the act (63 P. S. § 1306(b)).

 (2) Satisfaction of the requirements of § 40.16 (relating to licensure by endorsement) and proof of licensed practice of physical therapy in one or more other jurisdictions of the United States or Canada for at least 36 months of the 5 years immediately preceding application for reactivation.

 (f) A licensee who has not renewed the license may not practice the profession in this Commonwealth until the license has been renewed or reactivated. A licensee who practices the profession in this Commonwealth after the license has expired and before it has been renewed or reactivated is subject to disciplinary action under sections 4(a) and 11(6) of the act (63 P. S. §§ 1304(a) and 1311(6)) as set forth in § 40.52(11) (relating to unprofessional conduct; physical therapists). A licensee who has engaged in practice during a period in which the license was not active may be subject to criminal prosecution under section 12 of the act (63 P. S. § 1312).

SCOPE OF PRACTICE

§ 40.53. Nondelegable activities; accountability.

*  *  *  *  *

 (b) A physical therapist may not assign or delegate to physical therapist assistants or supportive personnel functions which require the formal education or training and the skill and knowledge of a licensed physical therapist, including the following functions:

 (1) Interpretation of referrals.

 (2) Initial patient contact and initial evaluation or reevaluation.

*  *  *  *  *

PRACTICE WITHOUT REFERRAL

§ 40.61. Certificate of authorization to practice physical therapy without a referral.

 (a) An applicant for certification of authorization to practice physical therapy without a referral of a licensed physician shall submit evidence satisfactory to the Board, on forms supplied by the Board, that the applicant has met the following requirements:

 (1) Holds a current license to practice physical therapy in this Commonwealth.

 (2) Has done one of the following:

 (i) Passed the National Physical Therapy Examination (NPTE) after January 1, 1990.

 (ii) Passed the NPTE prior to January 1, 1990, and successfully completed, within 2 years prior to application, a Board approved course consisting of at least 10 hours on the appropriate evaluative and screening procedures to determine the need for further examination or consultation by a physician, dentist or podiatrist prior to initiating treatment without a referral. The Board will maintain a list of currently approved courses.

 (3) Has done one of the following:

 (i) Practiced physical therapy in the delivery of patient care on a continuous basis for at least 2 years immediately preceding the application for certificate of authorization.

 (ii) Been licensed by endorsement and practiced physical therapy in the delivery of patient care as a licensed physical therapist in the other state on a continuous basis for at least 2 years immediately preceding the application for certificate of authorization.

 (iii) Provided proof of meeting these practice requirements through any combination of subparagraphs (i) and (ii).

 (iv) For purposes of this section, ''practice of physical therapy on a continuous basis'' is defined as a minimum of 200 hours each year in the delivery of direct patient care.

 (4) Has obtained professional liability insurance under the requirements of § 40.69 (relating to professional liability insurance).

 (b) A certificateholder shall display the certificate of authorization in a manner conspicuous to the public.

 (c) A certificateholder may not delegate the care of a patient being treated without a referral to a physical therapist who is not a certificateholder.

 (d) A certificateholder shall refer patients to a licensed physician or other appropriate health care practitioner in the following cases:

 (1) Cases where symptoms are present for which physical therapy is a contraindication.

 (2) Cases for which treatment is outside the scope of practice of physical therapy.

 (3) Cases for which treatment is beyond the education, expertise or experience of the physical therapist.

 (e) A certificateholder may treat an individual without a referral as provided in this chapter for up to 30 calendar days from the date of the first treatment. A physical therapist may not treat an individual beyond 30 days from the date of the first treatment unless the individual has obtained a referral from a licensed physician, a licensed physician assistant practicing under a written agreement, a certified registered nurse practitioner practicing under a collaborative agreement, a licensed dentist for the treatment of a condition that is within the scope of practice of dentistry or a licensed podiatrist for the treatment of a condition that is within the scope of practice of podiatry. The date of the first treatment for purposes of this subsection is the date the person is treated by any physical therapist treating without a referral.

 (f) A certificateholder may not treat a condition in an individual which is a nonneurologic, nonmuscular or nonskeletal condition or treat an individual who has an acute cardiac or acute pulmonary condition unless the certificateholder has consulted with the individual's licensed physician, dentist or podiatrist regarding the individual's condition and the physical therapy treatment plan or has referred the individual to a licensed physician, dentist or podiatrist for diagnosis and referral.

§ 40.62. (Reserved).

§ 40.63. Continuing education for direct access certificateholder.

 (a) Definitions. The following word, when used in this section, has the following meaning, unless the context clearly indicates otherwise:

Certificateholder—A licensed physical therapist who holds a certificate of authorization to practice physical therapy without a referral.

 (b) Continuing education requirement for renewal of certificate of authorization. Beginning after the first renewal of the certificate of authorization, as a condition of certificate renewal, a physical therapist shall have completed during the preceding biennium a minimum of 30 contact hours of physical therapy continuing education related to keeping the certificateholder apprised of advancements and new developments in the practice of the physical therapy profession. At least 10 of the 30 contact hours shall be in evaluative procedures to treat a person without a referral. During renewal periods prior to January 1, 2013, a direct access certificateholder need complete only 20 hours of continuing education, including at least 10 hours in evaluative procedures.

*  *  *  *  *

 (g) Waivers; exemptions for continuing education. The Board may, in individual cases involving physical disability or illness, or undue hardship, grant a waiver of the continuing education requirements or grant an extension of time to complete the requirements. A waiver or extension of time will not be granted unless a written request is submitted by or on behalf of the licensee. In case of physical disability or illness, the request must include supporting documentation provided by a physician licensed in this Commonwealth or another state or territory of the United States or the District of Columbia and whose license is in good standing. Necessary documentation must be received by the Board no later than 90 days preceding the biennial renewal. If the physical disability or illness or undue hardship for which the waiver has been granted continues beyond the period of the waiver, the licensee shall reapply for an extension of the waiver. The Board may, as a condition of any waiver granted, require the licensee to make up all or part of the continuing education waived.

 (h) Preapproved sponsors. In addition to sponsors whose specific courses and programs are approved, the Board finds the following entities have currently met the standards for approved courses and programs. Accordingly, courses or programs that otherwise meet all requirements for required continuing education are approved when offered by the following sponsors:

 (1) APTA and its components.

 (2) FSBPT and its jurisdictions.

 (3) Graduate education programs accredited by CAPTE.

 (4) Postentry level doctorate of physical therapy programs in an academic institution accredited by a regional accrediting organization recognized by the Council of Regional Accrediting Commissions on behalf of the Council for Higher Education Accreditation.

 (i) General continuing education requirement. Hours of continuing education applied to satisfy the requirement of this section may also be applied to satisfy the requirement of § 40.67 (relating to continuing education for licensed physical therapist). Satisfaction of the continuing education requirement in this section will be deemed to establish satisfaction of the continuing education requirement in § 40.67.

CONTINUING EDUCATION

§ 40.67. Continuing education for licensed physical therapist.

 (a) Contact hour requirements. Beginning with the January 1, 2013—December 31, 2014 biennial renewal period, a licensed physical therapist shall satisfy the following continuing education requirements.

 (1) During each biennial renewal period, a licensee shall complete qualifying continuing education equal to at least 30 contact hours of continuing physical therapy education, including at least 2 contact hours in law or ethics applicable to the practice of physical therapy.

 (2) Except as permitted in § 40.20(c)(1) (relating to inactive status of physical therapist license), paragraph (4) or as directed by the Board, continuing education may satisfy the requirement of paragraph (1) only for the biennium during which it was completed. A contact hour of continuing education may not be used to satisfy the requirement of paragraph (1) for more than 1 biennium.

 (3) Unless otherwise excused by the act or this subchapter, failure to complete the minimum required amount of continuing education during the applicable renewal period as required under section 7.2 of the act (63 P. S. § 1307.2) and this section will subject the licensee to disciplinary action under section 11(a)(6) of the act (63 P. S. § 1311(a)(6)) as provided in § 40.52(11) (relating to unprofessional conduct; physical therapists).

 (4) The Board may, in individual cases involving physical disability or illness, or undue hardship, grant a waiver of the continuing education requirements or grant an extension of time to complete the requirements. A waiver or extension of time will not be granted unless a written request is submitted by or on behalf of the licensee. In case of physical disability or illness, the request must include supporting documentation provided by a physician licensed in this Commonwealth or another state or territory of the United States or the District of Columbia and whose license is in good standing. The necessary documentation must be received by the Board no later than 90 days preceding the biennial renewal. If the physical disability or illness or undue hardship for which the waiver has been granted continues beyond the period of the waiver, the licensee shall reapply for an extension of the waiver. The Board may, as a condition of a waiver granted, require the licensee to make up all or part of the continuing education involved.

 (5) A licensee is not required to complete continuing education during the biennial renewal cycle in which the licensee was first licensed.

 (b) Reporting completion of continuing education. Continuing education shall be reported and documented in the following manner.

 (1) In general, proof of completion of a course or program of continuing education must consist of a certificate of completion or other documentation issued by the course or program provider, including:

 (i) The name of the participant.

 (ii) The name of the provider.

 (iii) The date or dates of the course or program.

 (iv) The name of the course and any Board issued approval number of the course or program.

 (v) The number of contact hours of continuing education or academic credit.

 (2) A licensee shall retain proof of completion of continuing education for 5 years after completion of the continuing education or after the completion of the renewal period during which the continuing education was required or applied, whichever is later.

 (3) The Board will audit licensees to verify compliance with continuing education requirements. A licensee shall fully respond to an audit notice within 30 days or other time period allowed in the notice.

 (c) Credit for approved continuing education. Credit for continuing education will be determined in accordance with the following.

 (1) Credit for continuing education will be granted only for courses or programs offered by providers preapproved under subsection (d)(1) or approved by the Board under subsection (d)(2) or for authoring publications as authorized under subsection (e).

 (2) Unless limited by this section, continuing education credit may be earned in a course or program or authoring a publication relating to any of the following:

 (i) Subject matter falling within the definition of ''physical therapy'' in section 2 of the act (63 P. S. § 1302).

 (ii) Subject matter that is part of training necessary to qualify one for licensure as a physical therapist or certification of authority to practice physical therapy without a referral.

 (iii) Law or ethics applicable to the practice of physical therapy.

 (iv) Subject matter that otherwise keeps the licensee apprised of advancements and new developments in the practice of the profession of physical therapy.

 (3) Continuing education credit may not be earned in a course in office management or practice building.

 (4) A licensee may not receive credit more than once in a given renewal period for repetition of courses or programs with substantially similar content and objectives.

 (5) A licensee teaching a course or program of continuing education may receive the same credit that a licensee attending the course or program would receive and may also receive credit for time spent in preparation. Credit for time spent in preparation may not exceed the credit available for a licensee attending the course or program.

 (6) If a course or program extends beyond a single biennial renewal period, credit will be awarded in the period in which the course or program is finally completed.

 (d)  Approval of continuing education courses and programs. Continuing education courses and programs may be approved in accordance with this subsection.

 (1) Provided that the course or program otherwise meets the requirements of subsection (c)(2) and the provider issues to each attending licensee a certificate of completion record in accordance with subsection (b)(1), a course or program of continuing education from a provider preapproved under this paragraph is approved by the Board.

 (i) The following providers are preapproved:

 (A) APTA or its components.

 (B) FSBPT and its jurisdictions.

 (C) A physical therapist or physical therapist assistant educational program accredited by CAPTE.

 (D) The American Heart Association and the American Red Cross and their component organizations, only for purposes of providing continuing education in identifying and responding to emergency health conditions.

 (E) An organization credentialed by APTA to confer a fellowship in a specialty, only for purposes of conferring the fellowship.

 (F) An organization credentialed by APTA to offer a residency program, only for purposes of the residency program.

 (G) The American Board of Physical Therapy Specialization or its successor organization, only for specialty certification.

 (ii) Any other provider seeking preapproved provider status shall:

 (A) Apply to the Board on forms supplied by the Board.

 (B) Pay the required fee.

 (C) Demonstrate that the provider is competent to provide continuing education to physical therapists without direct review by the Board.

 (iii) The Board may terminate preapproved provider status if the provider, including the providers in subparagraph (i), is no longer able to demonstrate that it is competent to provide continuing education to physical therapists without direct review by the Board. The Board will audit preapproved providers to assure that the provider complies with the requirements of this paragraph and paragraph (3).

 (iv) The Board will maintain a list of preapproved providers and make the list publicly available.

 (2) A continuing education course or program offered by a provider not preapproved under paragraph (1) may be approved as provided in this paragraph.

 (i) The provider shall apply at least 60 days prior to the date the continuing education course or program is scheduled to take place on forms provided by the Board and fully provide the information required on the application forms for the Board to fulfill its duties under this section. The application shall be submitted to the Board with payment of the fee as required under § 40.5 (relating to fees).

 (ii) The provider shall apply for approval of each course or program of continuing education, which may include multiple presentations of the course or program at one or more locations. Unless approved by the Board, a significant change in content or use of instructors other than those described in the application for approval is a separate course or program for which Board approval is required.

 (iii) The Board may deny approval of a course or program of continuing education when the provider has previously failed or is not currently able to comply with the provider responsibilities of paragraph (3) or the course or program does not qualify under subsection (c)(1). The Board may approve in part and deny in part an application for approval of a course or program. The Board may deny an application for approval that does not comply with the act or this chapter.

 (iv) The Board may terminate its prior approval of a course or program of continuing education when the applicant made one or more false or misleading material statements on the application. The Board may also terminate in part or in whole its prior approval of a course or program when it is later determined that the Board has grounds to deny approval in accordance with this section. Termination of approval will not forfeit credit for a course or program completed prior to termination of approval.

 (v) The Board will maintain a list of approved courses and programs in a form accessible to licensees and the public.

 (vi) If the provider has not separately sought approval under this paragraph, a licensee attending the course or program may apply for approval of a course or program of continuing education in accordance with this paragraph. The licensee shall apply for approval prior to attending the course or program. The Board may waive the requirements in paragraph (3) when a licensee attending a course or program applies for approval.

 (3) For each course or program of continuing education, the provider shall:

 (i) Disclose in advance to prospective attendees the objectives, content, teaching method and the number of hours of continuing education credit approved by the Board.

 (ii) Provide physical facilities adequate for the number of anticipated participants and the teaching methods to be used.

 (iii) Provide accurate instructional materials.

 (iv) Utilize qualified instructors who are knowledgeable in the subject matter.

 (v) Evaluate the course or program through the use of questionnaires of the participants and instructors.

 (vi) Issue a certificate of completion to each participant.

 (vii) Retain attendance records, written outlines and a summary of evaluations for 5 years.

 (e) Authoring publications. A licensed physical therapist may earn continuing education credit for authoring publications as provided in this subsection.

 (1) Prior to the end of the biennial renewal period for which credit is sought, the licensed physical therapist shall apply to the Board on forms provided by the Board and submit the documentation necessary to establish entitlement to credit.

 (2) Subject to the limitations of paragraph (3), 1 contact hour of continuing education credit will be awarded for each hour spent in research or writing. Credit will not be awarded if the total research and writing time was less than 1 hour.

 (3) Within the subject matter limitations of subsection (c), a licensed physical therapist may earn credit for authoring a publication as follows:

 (i) Authoring or editing a book, not to exceed 15 contact hours.

 (ii) Authoring or editing a chapter of a book, not to exceed 10 contact hours.

 (iii) Authoring or reviewing a published peer-reviewed article, not to exceed 10 contact hours.

 (iv) Authoring a non-peer-reviewed article published in a physical therapy publication, not to exceed 5 contact hours.

 (4) Credit for authoring a publication will be awarded only for the biennial renewal period in which it was published.

PROFESSIONAL LIABILITY INSURANCE

§ 40.69. Professional liability insurance.

 (a) Professional liability insurance requirements. As required under section 9.1(b)(4) of the act (63 P. S. § 1309.1(b)(4)), a licensed physical therapist shall maintain professional liability insurance in the minimum amount of $1 million per occurrence or claims made as a condition of practicing as a physical therapist in this Commonwealth. Coverage may be provided through:

 (1) A self-insurance plan that meets the standards and procedures established by the Insurance Department in 31 Pa. Code Chapter 243 (relating to medical malpractice and health-related self-insurance plans).

 (2) Personally purchased professional liability insurance.

 (3) Professional liability insurance, coverage provided by the licensee's employer.

 (4) A similar type of coverage.

 (b) Proof of professional liability insurance coverage. Proof of professional liability insurance coverage must include a certificate of insurance or copy of the declaration page from the insurance policy setting forth the effective date, expiration date and dollar amounts of coverage. A license that was issued in reliance upon a letter from the applicant's insurance carrier indicating that the applicant will be covered against professional liability effective upon the issuance of the applicant's license as permitted under section 9.1(b)(4)(iii.2) of the act will become inactive as a matter of law 30 days after issuance of the license if the licensee has not provided proof of professional liability insurance coverage and will remain inactive until the licensee provides proof of insurance coverage.

 (c) Disciplinary action. Failure to maintain insurance coverage as required will subject the licensee to disciplinary action under section 11(a)(6) of the act (63 P. S. § 1311(a)(6)) as provided in § 40.52(11) (relating to unprofessional conduct; physical therapists).

Subchapter C.  PHYSICAL THERAPIST ASSISTANTS

GENERAL PROVISIONS

§ 40.152. Definitions.

 The following words and terms, when used in this subchapter, have the following meanings, unless the context clearly indicates otherwise:

Act—The Physical Therapy Practice Act (63 P. S. §§ 1301—1313).

Indirect supervision—Supervision of a physical therapist assistant by a licensed physical therapist that is not direct on-premises supervision, as authorized under section 9.1(c) of the act (63 P. S. § 1309.1(c)) and this subchapter, including § 40.173 (relating to supervision of physical therapist assistant by licensed physical therapist).

Physical therapist assistant—A person who has been certified in accordance with the act and this subchapter to provide services as a physical therapist assistant.

Physical Therapist Assistant Certification Examination—An examination adopted by the Board and administered in accordance with section 812.1 of The Administrative Code of 1929 (71 P. S. § 279.3a). The term also includes an examination administered by another state, territory or the District of Columbia if it is the same examination adopted by the Board.

Physical therapy independent private practice outpatient facility—

 (i) A practice owned and operated by a licensee under the act, or by a licensee under the act and a healthcare practitioner, licensed by the Commonwealth, as permitted by law.

 (ii) This term does not include a practice owned or affiliated with a hospital or healthcare system.

CERTIFICATION

§ 40.161. Certification as physical therapist assistants; practice; exceptions.

 (a) A person may not perform or hold himself out as being able to perform as a physical therapist assistant in this Commonwealth unless the person is certified by the Board under section 9.1 of the act (63 P. S. § 1309.1) and this subchapter or exempted under this section.

 (b) A person or business entity may not use in connection with a business name or activity the words ''physical therapist assistant,'' the letters ''P.T.A.'' or similar words and related abbreviations to imply that physical therapist assistant services are being provided, unless the services are provided by a physical therapist assistant certified under the act and this subchapter.

 (c) This subchapter does not prohibit physical therapist assistant students from assisting a physical therapist licensed to practice without restriction in this Commonwealth under the direct on-premises supervision of the physical therapist as is incidental to their course of study in a program which has been approved for the education and training for physical therapist assistants by the Commission on Accreditation in Physical Therapy Education (CAPTE).

 (d) Physical therapist assistants shall identify themselves to patients as physical therapist assistants.

§ 40.162. Application for certification.

 (a) The applicant shall submit evidence satisfactory to the Board, on forms supplied by the Board, that the applicant has met the following criteria. The applicant:

 (1) Is at least 18 years of age, unless otherwise determined by the Board that the candidate has proved the capability to accept and handle the responsibilities appurtenant to certification.

 (2) Is of good moral character.

 (3) Is not addicted to the habitual use of alcohol, narcotics or other habit-forming drugs.

 (4) Has met the professional requirements for certification under § 40.163 (relating to requirements for certification).

 (b) An applicant for certification issued by the Board shall apprise the Board of the following:

 (1) A license, certificate, registration or other authorization to practice a profession issued, denied or limited by another state, territory or possession of the United States, a branch of the Federal government or another country.

 (2) Disciplinary action instituted against the applicant by a licensing authority of another state, territory or possession of the United States, a branch of the Federal government or another country.

 (3) A finding or verdict of guilt, an admission of guilt or a plea of nolo contendere to a felony offense or an offense involving moral turpitude.

 (c) The reporting responsibilities enumerated in subsection (b) continue after the Board issues a certification. If, after the Board has issued a certification, one or more events listed under subsection (b)(1) and (2) occur, the certified physical therapist assistant shall report that matter to the Board in writing on the biennial renewal application or within 90 days of its occurrence, whichever occurs sooner. The certified physical therapist assistant shall report an event occurring under subsection (b)(3) within 30 days of occurrence.

§ 40.163. Requirements for certification.

 (a) Under section 9.1(a) of the act (63 P. S. § 1309.1(a)), an applicant for certification by examination shall submit evidence of the following:

 (1) Graduation from a physical therapist assistant program which has been approved for the education and training for physical therapist assistants by the Commission on Accreditation in Physical Therapy Education (CAPTE).

 (2) A passing grade on the physical therapist assistant certification examination.

 (b) Under section 6(d.1) of the act (63 P. S. § 1306(d.1)), an applicant for reciprocal certification shall submit evidence of a valid license, certificate or registration as a physical therapist assistant issued by another state, territory or the District of Columbia, where the requirements for licensure, certification or registration were on the date of issuance substantially the same as those required by this Commonwealth, and which accords similar privileges to persons certified as physical therapist assistants in this Commonwealth.

§ 40.164. Physical therapist assistant certification examination.

 (a) Application procedure. An applicant applying for certification by examination shall take the physical therapist assistant certification examination. The applicant who is taking the examination within this Commonwealth shall comply with the following:

 (1) The applicant shall complete application forms for admission to the examination obtained from the Board and return the completed form with a check or money order for the appropriate fee.

 (2) The applicant shall present the required credentials of professional education at the time of application.

 (b) Failure and reexamination. In the case of failure of examination, the following apply:

 (1) After failing the first examination, the applicant has, after the expiration of 6 months and within 2 years of the date of the first failure, the privilege of a second examination upon the filing of a new application under subsection (a) and upon payment of the appropriate fee.

 (2) After a second or successive failure to pass the examination, an applicant desiring to take a third or successive examination shall file a new application. The Board may require evidence of additional training prior to allowing a candidate to take a third or successive examination.

 (3) The granting of permission to take a third or successive examination is subject to:

 (i) Authorization by the Board at its discretion to include an oral or practical examination, or both, in connection with the written examination to further test the knowledge, skills and competence of the applicant.

 (ii) The applicant otherwise qualifying under requirements in force at the time that permission to take the examination is sought.

§ 40.165. Authorization to provide services as a physical therapist assistant under indirect supervision.

 (a) An applicant for a certificate of authority to provide services as a physical therapist assistant under indirect supervision by a licensed physical therapist shall submit to the Board on forms supplied by the Board a completed application, including all necessary supporting documents, and pay the fee in § 40.5 (relating to fees) for initial application for certification to provide services under indirect supervision.

 (b) Unless there are grounds to deny the application under § 40.181 (relating to refusal, suspension or revocation of certification), the Board will grant a certificate of authority as described in this section to an applicant who:

 (1) Demonstrates that the applicant satisfies the requirements of §§ 40.161—40.164.

 (2) Demonstrates that the applicant satisfies the requirements of section 9.1(c)(4) of the act (63 P. S. § 1309.1(c)(4)) for certification to provide services as a physical therapist assistant under indirect supervision of a licensed physical therapist by either verifying that the applicant:

 (i) Has at least 2,000 hours of experience providing patient-related acts and services under the supervision of one or more licensed physical therapists, as verified by those physical therapists.

 (ii) Worked as a physical therapist assistant for at least 3 years between October 2, 2003, and October 2, 2008, the 5-year period immediately preceding the effective date of section 9.1(c)(4) of the act, and providing a detailed resume or other adequate documentation to corroborate the verification. Part-time work will be acceptable if it is at least equivalent to 3 years of full-time work.

§ 40.166. Temporary certificate to provide services as a physical therapist assistant.

 (a) An applicant for a temporary certificate to provide services as a physical therapist assistant under section 9.1(a.1) of the act (63 P. S. § 1309.1(a.1)) shall apply to the Board on forms provided by the Board including all necessary supporting documents and pay the fee in § 40.5 (relating to fees) for application for temporary certificate to provide services as a physical therapist assistant.

 (b) Unless there are grounds to deny the application under § 40.181 (relating to refusal, suspension or revocation of certification), the Board will grant a temporary certificate as described in this section to an applicant who:

 (1) Demonstrates that the applicant satisfies the requirements of §§ 40.161—40.164 except the certification examination requirement in § 40.163(a)(2) (relating to requirements for certification).

 (2) Has applied for certification to provide services as a physical therapist assistant in accordance with §§ 40.161—40.164 or § 40.165.

 (3) Has not previously sat for the certification examination.

 (4) Has not previously received a temporary certificate under this section.

 (c) The Board may rescind a temporary certificate issued under this section if the Board determines that the certificate was issued based upon fraudulent information, such as the applicant's identity or educational, criminal, or professional or occupational licensure record.

 (d) A temporary certificate issued under this section will expire upon the earlier of failing the certification examination or 6 months after issuance. A temporary certificate issued under this section will become void upon issuance of a certificate to provide services as a physical therapist assistant under §§ 40.161—40.165.

 (e) A temporary certificate may not be renewed or extended beyond its expiration. The holder of a temporary certificate shall return the certificate to the Board within 10 days after its expiration.

 (f) The holder of a temporary certificate may provide services as a physical therapist assistant only under the direct on-premises supervision of a licensed physical therapist.

SCOPE OF ACTIVITIES

§ 40.171. Functions of physical therapist assistants.

 (a) A physical therapist assistant may perform only activities for which the physical therapist assistant has received formal education and training, including the following activities:

 (1) Providing patient-care services as specified in the patient's plan of care.

 (2) Modifying treatment techniques as indicated in the patient's plan of care.

 (3) Responding to acute changes in the patient's physiological state.

 (4) Performing selected tests and measurements consistent with the physical therapist assistant's formal education and training.

 (b) Physical therapist assistants may not interpret referrals or tests, perform evaluation procedures, initiate treatment programs, assume responsibility for planning patient care or perform activities which require the formal education or training and the skill and knowledge of a licensed physical therapist.

 (c) Patient care services performed by a physical therapist assistant under the supervision of a licensed physical therapist shall be on the basis of not more than three physical therapist assistants for a licensed physical therapist.

 (d) The initial patient contact shall be made by a licensed physical therapist for evaluation of the patient and establishment of a plan of care.

§ 40.173. Supervision of physical therapist assistant by licensed physical therapist.

 (a) General rule. A physical therapist assistant may provide patient care services only under the supervision of a licensed physical therapist. Except as otherwise provided in the act or this subchapter, a physical therapist assistant may provide patient care services only under the direct on-premises supervision of a licensed physical therapist.

 (b) Supervision generally. The required level of supervision depends upon the following factors:

 (1) The performance of selected acts and services by the physical therapist assistant is the responsibility of the licensed physical therapist at all times.

 (2) Supervision shall be based upon the following:

 (i) The complexity and acuity of the patient's needs.

 (ii) The proximity and accessibility of the licensed physical therapist to the certified physical therapist assistant.

 (iii) The amount of supervision available in the event of an emergency or critical event.

 (iv) The type of practice setting in which the service is provided.

 (3) The supervising licensed physical therapist may determine and require that the physical therapist assistant provide services under greater supervision than would otherwise appear to be required under section 9.1(c)(3) of the act (63 P. S. § 1309.1(c)(3)) or this section, including requiring that the physical therapist assistant provide services under direct on-premises supervision.

 (c) Practice setting. A physical therapist assistant holding a current certificate of authority to provide services under indirect supervision may do so in accordance with this section and section 9.1(c) of the act.

 (1) When care is delivered to an individual in an acute care hospital, acute inpatient rehabilitation center, long-term acute care hospital setting or as otherwise required by Federal or State law or regulation, the physical therapist assistant shall be under the direct on-premises supervision of a licensed physical therapist.

 (2) When care is provided to an individual in a preschool, primary school, secondary school or other similar educational setting, a licensed physical therapist shall make an onsite visit and examine the patient at least every four patient visits or every 30 days, whichever occurs first.

 (3) When care is provided to an individual in an early intervention setting, a licensed physical therapist shall make an onsite visit and examine the patient at least every four patient visits or every 30 days, whichever occurs first.

 (4) When care is provided to a patient in a physical therapy independent private practice outpatient facility, a licensed physical therapist shall provide direct on-premises supervision for a physical therapist assistant for at least 50% of the hours worked by the physical therapist assistant during the calendar week unless otherwise required under Federal law. The physical therapist shall be immediately available by telecommunication when not providing direct on-premises supervision.

 (5) When care is provided to a patient in an outpatient facility of a practice owned or affiliated with a hospital or healthcare system, a licensed physical therapist shall provide direct on-premises supervision for a physical therapist assistant for at least 50% of the hours worked by the physical therapist assistant during the calendar week unless otherwise required under Federal law. The physical therapist shall be immediately available by telecommunication if not providing direct on-premises supervision.

 (6) For home health care, a licensed physical therapist shall make an onsite visit and actively participate in the treatment of the patient at least every seven patient visits or every 14 days, whichever occurs first. For purposes of this paragraph, active participation includes examination of the patient. Multiple visits on a single date constitute only a single patient visit in determining whether the licensed physical therapist is required to make an onsite visit.

 (7) For care provided in a long-term care nursing facility, skilled nursing facility or extended care facility, a licensed physical therapist shall make an onsite visit and actively participate in the treatment of the patient at least every seven patient visits or every 14 days, whichever occurs first. For purposes of this paragraph, active participation includes examination of the patient. Multiple visits on a single date constitute only a single patient visit in determining whether the licensed physical therapist is required to make an onsite visit.

 (d) Emergency situations. The emergency situation provisions of section 9.1(i) of the act apply only to those current certified physical therapist assistants who are authorized by the Board under section 9.1(c)(4) of the act and § 40.165 (relating to authorization to provide services as a physical therapist assistant under indirect supervision) to provide services under supervision of a licensed physical therapist other than direct on-premises supervision.

DISCIPLINE

§ 40.181. Refusal, suspension or revocation of certification.

 (a) Under section 9.1(f) of the act (63 P. S. § 1309.1(f)), the Board may refuse, suspend or revoke the certification of a person who has:

 (1) Performed physical therapist assistant functions outside the scope of activities under § 40.171 (relating to functions of physical therapist assistants).

 (2) Attempted to obtain or obtained registration by fraud or misrepresentation.

 (3) Committed an act of gross negligence, or gross incompetence or repeated acts of negligence or incompetence in the providing of physical therapist assistant services.

 (4) Been convicted of a felony or of a misdemeanor which relates to the person's suitability for registration as a physical therapist assistant in a Federal, state, territorial or foreign court of competent jurisdiction. Conviction as used in this paragraph includes a finding, or verdict of guilt, an admission of guilt or a plea of nolo contendere.

 (5) Become addicted to alcohol or hallucinogenic, narcotic or other drugs which tend to impair judgment or coordination.

 (6) Been found guilty of unprofessional conduct, which includes departure from or failure to conform to the minimal standards of acceptable and prevailing practice for physical therapist assistants in which proceeding actual injury to a patient need not be established.

 (7) Been adjudged mentally incompetent by a court of competent jurisdiction.

 (8) Had a certificate, license or registration to practice as a physical therapist assistant revoked, suspended or refused or otherwise been subjected to other disciplinary action taken by another state, territory or country or by the District of Columbia.

 (9) Made misleading, deceptive, untrue or fraudulent representations in violation of the act or otherwise in the rendering of physical therapist assistant services.

 (10) Provided services as a physical therapist assistant under indirect supervision without having a current certificate of authorization to practice under indirect supervision issued under § 40.165 (relating to authorization to provide services as a physical therapist assistant under indirect supervision).

 (11) Provided services as a physical therapist assistant under indirect supervision other than as authorized by section 9.1(c) of the act and § 40.173 (relating to supervision of physical therapist assistant by licensed physical therapist).

 (b) Actions taken by the Board regarding the refusal, suspension or revocation of a registration are taken subject to the right of notice, hearing and adjudication, and the right of appeal therefrom under 2 Pa.C.S. §§ 501—508 and 701—704 (relating to the Administrative Agency Law).

MAINTENANCE OF CERTIFICATION

§ 40.191. Renewal of certification.

 (a) A certification issued under this subchapter expires on December 31 of every even-numbered year unless renewed for the next biennium.

 (b) Biennial renewal forms and other forms and literature to be distributed by the Board will be forwarded to the last mailing address given to the Board by the certified physical therapist assistant. The certified physical therapist assistant shall notify the Board in writing within 10 days after making an address change. Failure of the Board to send or of the certified physical therapist assistant to receive a biennial renewal application does not relieve the certified physical therapist assistant of the biennial renewal responsibility.

 (c) To retain the right to provide services as a physical therapist assistant, the certified physical therapist assistant's certification shall be renewed by the certified physical therapist assistant in the manner prescribed by the Board, and the required fee shall be paid by the certified physical therapist assistant prior to the expiration of the next biennium. A certified physical therapist assistant applying for biennial certificate renewal shall:

 (1) Complete and submit the renewal application, including payment of the biennial renewal fee in § 40.5 (relating to fees) for application for biennial renewal of physical therapist assistant certificate.

 (2) Disclose any license, certificate, registration or other authorization to provide services as a physical therapist assistant in another state, territory, possession or country.

 (3) Disclose any disciplinary action pending before the appropriate healthcare licensing authority in any other jurisdiction or taken since the most recent application for renewal, whether or not licensed, registered or certified to practice in that other jurisdiction.

 (4) Disclose any pending criminal charges and any finding or verdict of guilt, admission of guilt, plea of nolo contendere or other criminal conviction since the most recent application for renewal.

 (5) Verify that the certified physical therapist assistant has complied with the continuing education requirements mandated by section 9.1(j) of the act (63 P. S. § 1309.1(j)) during the biennial period immediately preceding the period for which renewal is sought in accordance with § 40.192 (relating to continuing education for certified physical therapist assistant). The Board will not renew a physical therapist assistant certification if the certified physical therapist assistant has not completed the continuing education required under section 9.1(j) of the act during the biennial period immediately preceding the period for which renewal is sought.

 (d) When a certification is renewed beyond December 31 of an even-numbered year, a late fee of $5 for each month or part of a month that the certified physical therapist assistant has provided services as a physical therapist assistant beyond the renewal date will be charged, in addition to the renewal fee. Payment of a late fee does not preclude the Board from taking disciplinary action for providing services as a physical therapist assistant without a current certification.

 (e) A certified physical therapist assistant who does not intend to provide services as a physical therapist assistant in this Commonwealth and who does not desire to renew the certification shall inform the Board in writing. Written confirmation of the Board's receipt of the request and notice that the certification has been classified as inactive will be forwarded to the certified physical therapist assistant.

 (f) The certified physical therapist assistant who either fails to pay the biennial renewal fee or who notifies the Board of the desire not to renew the certification will not be sent biennial renewal forms for the following biennial renewal periods unless the certified physical therapist assistant requests the Board, in writing, to reactivate the certification.

 (g) To reactivate an inactive certification, the certified physical therapist assistant shall apply on forms supplied by the Board and answer all questions fully. The certified physical therapist assistant shall:

 (1) Include the documentation required under § 40.192(b) for the immediately preceding biennium, which may be completed during the current biennium. Unless waived by the Board under § 40.192(a)(4), the Board will not reactivate a certificate until the required continuing education for the preceding biennium has been successfully completed.

 (2) Pay the current renewal fee and the reactivation application fee in § 40.5.

 (3) Verify that the certified physical therapist assistant did not provide services as a physical therapist assistant in this Commonwealth while the certification was inactive.

 (h) A certified physical therapist assistant who does not make the verification of subsection (g)(3) shall also pay prior biennial renewal fees and late fees as required under this subsection. Unless previously paid, the certified physical therapist assistant shall pay the renewal fee for each biennial renewal period after the certificate became inactive and during which the certified physical therapist assistant provided services as a physical therapist assistant in this Commonwealth. The certified physical therapist assistant shall also pay a late fee of $5 per month or part of month from the first date the certified physical therapist assistant provided services as a physical therapist assistant in this Commonwealth after the certificate became inactive until the date the certified physical therapist assistant files a fully-completed reactivation application. The applicant for certification reactivation will not be assessed a fee or penalty for preceding biennial periods in which the applicant did not provide services as a physical therapist assistant in this Commonwealth. Payment of a late fee does not preclude the Board from taking disciplinary action for providing services as a physical therapist assistant without a current certification.

 (i) If other conditions of the act and this chapter have been met, active status will be restored upon payment of the fees which have accrued.

 (j) A certified physical therapist assistant who has not renewed the certification may not provide services as a physical therapist assistant in this Commonwealth until the certification has been renewed or reactivated. A certified physical therapist assistant who provides services as a physical therapist assistant in this Commonwealth after the certification has expired and before it has been renewed or reactivated is subject to disciplinary action under section 9.1(d) and (f) of the act, as set forth in § 40.181(a)(6) (relating to refusal, suspension or revocation of certification). A certified physical therapist assistant who has provided services as a physical therapist assistant during a period in which the certified physical therapist assistant's certification was not active may be subject to criminal prosecution under section 12 of the act (63 P. S. § 1312).

 (k) In addition to the other requirements of this section, a certified physical therapist assistant whose certification has been inactive for 5 years or more shall demonstrate current competence to provide services as a physical therapist assistant by one or both of the following:

 (1) Successful completion of the certification examination required under § 40.164 (relating to physical therapist assistant certification examination).

 (2) Satisfaction of the requirements of § 40.163(b) (relating to requirements for certification) and proof of licensed or certified provision of services as a physical therapist assistant in one or more other jurisdictions of the United States or Canada for at least 36 months of the 5 years immediately preceding application for reactivation.

§ 40.192. Continuing education for certified physical therapist assistant.

 (a) Contact hour requirements. Beginning with the January 1, 2013—December 31, 2014 biennial renewal period, a certified physical therapist assistant shall satisfy the following continuing education requirements.

 (1) During each biennial renewal period, a certified physical therapist assistant shall complete qualifying continuing education equal to at least 30 contact hours of continuing physical therapy education, including at least 4 contact hours in identifying and responding to emergency health conditions and at least 2 contact hours in law or ethics applicable to the practice of physical therapy.

 (2) Except as permitted in § 40.191(g)(1) (relating to renewal of certification), paragraph (4) or as directed by the Board, continuing education may satisfy the requirement of paragraph (1) only for the biennium during which it was completed. A contact hour of continuing education may not be used to satisfy the requirement of paragraph (1) for more than 1 biennium.

 (3) Unless otherwise excused by the act or this subchapter, failure to complete the minimum required amount of continuing education during the applicable renewal period as required under section 9.1(j) of the act (63 P. S. § 1309.1(j)) and this section will subject the certified physical therapist assistant to disciplinary action under section 9.1(f) of the act as provided in § 40.181(6) (relating to refusal, suspension or revocation of certification).

 (4) The Board may, in individual cases involving physical disability or illness, or undue hardship, grant a waiver of the continuing education requirements or grant an extension of time to complete the requirements. A waiver or extension of time will not be granted unless a written request is submitted by or on behalf of the certified physical therapist assistant. In case of physical disability or illness, the request must include supporting documentation provided by a physician licensed in this Commonwealth or another state or territory of the United States or the District of Columbia and whose license is in good standing. The necessary documentation must be received by the Board no later than 90 days preceding the biennial renewal. If the physical disability or illness or undue hardship for which the waiver has been granted continues beyond the period of the waiver, the certified physical therapist assistant shall reapply for an extension of the waiver. The Board may, as a condition of a waiver granted, require the certified physical therapist assistant to make up all or part of the continuing education involved.

 (5) A certified physical therapist assistant is not required to complete continuing education during the biennial renewal cycle in which the certified physical therapist assistant was first certified.

 (b) Reporting completion of continuing education. Continuing education shall be reported and documented in the following manner.

 (1) In general, proof of completion of a course or program of continuing education must consist of a certificate of completion or other documentation issued by the course or program provider, including:

 (i) The name of the participant.

 (ii) The name of the provider.

 (iii) The date or dates of the course or program.

 (iv) The name and any Board issued approval number of the course or program.

 (v) The number of contact hours of continuing education or academic credit.

 (2) A certified physical therapist assistant shall retain proof of completion of continuing education for 5 years after completion of the continuing education or after the completion of the renewal period during which the continuing education was required or applied, whichever is later.

 (3) The Board will audit certified physical therapist assistants to verify compliance with continuing education requirements. A certified physical therapist assistant shall fully respond to an audit notice within 30 days or other time period allowed in the notice.

 (c) Credit for approved continuing education. Credit for continuing education will be determined in accordance with the following.

 (1) Credit for continuing education will be granted only for courses or programs offered by providers preapproved under subsection (d)(1) or approved by the Board under subsection (d)(2) or for authoring publications as authorized under subsection (e).

 (2) Unless limited by this section, continuing education credit may be earned in a course or program or by authoring a publication relating to any of the following:

 (i) Subject matter falling within the definition of ''physical therapy'' in section 2 of the act (63 P. S. § 1302).

 (ii) Law or ethics applicable to the practice of physical therapy.

 (iii) Subject matter that otherwise keeps the certified physical therapist assistant apprised of advancements and new developments in the practice of the profession of physical therapy.

 (3) Continuing education credit may not be earned in a course in office management or practice building.

 (4) A certified physical therapist assistant may not receive credit more than once in a given renewal period for repetition of courses or programs with substantially similar content and objectives.

 (5) A certified physical therapist assistant teaching a course or conducting a program of continuing education may receive the same credit that a certified physical therapist assistant attending the course or program would receive and may also receive credit for time spent in preparation. Credit for time spent in preparation may not exceed the credit available for a certified physical therapist assistant attending the course or program.

 (6) If a course or program extends beyond a single biennial renewal period, credit will be awarded in the period in which the course or program is finally completed.

 (d) Approval of continuing education courses. Continuing education courses or programs may be approved in accordance with this subsection.

 (1) Provided that the course or program otherwise meets the requirements in subsection (c)(2) and the course or program provider issues to each attending certified physical therapist assistant a certificate of completion record in accordance with subsection (b)(1), a course or program of continuing education from a provider preapproved under this paragraph is approved by the Board.

 (i) The following providers are preapproved:

 (A) The American Physical Therapy Association or its components.

 (B) The Federation of State Boards of Physical Therapy and its jurisdictions.

 (C) A physical therapist or physical therapist assistant educational program accredited by the Commission on Accreditation in Physical Therapy Education.

 (D) The American Heart Association and the American Red Cross and their component organizations, only for purposes of providing continuing education in identifying and responding to emergency health conditions as required under subsection (a)(1).

 (ii) Any other provider seeking preapproved provider status shall:

 (A) Apply to the Board on forms supplied by the Board.

 (B) Pay the required fee.

 (C) Demonstrate that the provider is competent to provide continuing education to physical therapist assistants without direct review by the Board.

 (iii) The Board may terminate its prior approval of a course or program of continuing education when the applicant made one or more false or misleading material statements on the application. The Board may also terminate in part or in whole its prior approval of a course or program when it is later determined that the Board has grounds to deny approval in accordance with this section. Termination of approval will not forfeit credit for a course or program completed prior to termination of approval.

 (iv) The Board will maintain a list of preapproved providers and make the list publicly available.

 (2) A continuing education course or program offered by a provider not preapproved under paragraph (1) may be approved as provided in this paragraph.

 (i) The provider shall apply at least 60 days prior to the date the continuing education course or program is scheduled to take place on forms provided by the Board and fully provide the information required on the application forms for the Board to fulfill its duties under this section. The application shall be submitted to the Board with payment of the fee as required under § 40.5 (related to fees).

 (ii) The provider shall apply for approval of each course or program of continuing education, which may include multiple presentations of the course or program at one or more locations. Unless approved by the Board, a significant change in content or use of an instructor or instructors other than those described in the application for approval is a separate course or program for which Board approval is required.

 (iii) The Board may deny approval of a course or program of continuing education when the provider has previously failed or is not currently able to comply with the provider responsibilities of paragraph (3) or the course or program does not qualify under subsection (c)(1). The Board may approve in part and deny in part an application for approval of a course or program. The Board may deny an application for approval that does not comply with the act or this chapter.

 (iv) The Board may terminate its prior approval of a course or program of continuing education when the applicant made one or more false or misleading material statements on the application. The Board may also terminate in part or in whole its prior approval of a course or program when it is later determined that the Board has grounds to deny approval in accordance with this section. Termination of approval will not forfeit credit for a course or program completed prior to termination of approval.

 (v) The Board will maintain a list of approved courses and programs in a form accessible to certified physical therapist assistants and the public.

 (vi) If the provider has not separately sought approval under this paragraph, a certified physical therapist assistant attending the course or program may apply for approval of a course or program of continuing education in accordance with this paragraph. The certified physical therapist assistant shall apply for approval prior to attending the course or program. The Board may waive the requirements in paragraph (3) when a certified physical therapist assistant attending a course or program applies for approval.

 (3) For each course or program of continuing education, the provider shall:

 (i) Disclose in advance to prospective attendees the objectives, content, teaching method and the number of hours of continuing education credit approved by the Board.

 (ii) Provide physical facilities adequate for the number of anticipated participants and the teaching methods to be used.

 (iii) Provide accurate instructional materials.

 (iv) Utilize qualified instructors who are knowledgeable in the subject matter.

 (v) Evaluate the course or program through the use of questionnaires of the participants and instructors.

 (vi) Issue a certificate of completion to each participant.

 (vii) Retain attendance records, written outlines and a summary of evaluations for 5 years.

 (e) Authoring publications. A certified physical therapist assistant may earn continuing education credit for authoring publications as provided in this subsection.

 (1) Prior to the end of the biennial renewal period for which credit is sought, the certified physical therapist assistant shall apply to the Board on forms provided by the Board and submit the documentation necessary to establish entitlement to credit.

 (2) Subject to the limitations of paragraph (3), 1 contact hour of continuing education credit will be awarded for each hour spent in research or writing. Credit will not be awarded if the total research and writing time was less than 1 hour.

 (3) Within the subject matter limitations of subsection (c), a certified physical therapist assistant may earn credit for authoring a publication as follows:

 (i) Authoring or editing a book, not to exceed 15 contact hours.

 (ii) Authoring or editing a chapter of a book, not to exceed 10 contact hours.

 (iii) Authoring or reviewing a published peer-reviewed article, not to exceed 10 contact hours.

 (iv) Authoring a non-peer-reviewed article published in a physical therapy publication, not to exceed 5 contact hours.

 (4) Credit for authoring a publication will be awarded only for the biennial renewal period in which it was published.

Subchapter D. CHILD ABUSE REPORTING REQUIREMENTS

§ 40.202. Suspected child abuse—mandated reporting requirements.

 (a) General rule. Under 23 Pa.C.S. § 6311 (relating to persons required to report suspected child abuse), physical therapists and physical therapist assistants who, in the course of their employment, occupation or practice of their profession, come into contact with children shall report or cause a report to be made to the Department of Public Welfare when the physical therapist or physical therapist assistant has reasonable cause to suspect on the basis of professional or other training or experience, that a child coming before them in their professional or official capacity is a victim of child abuse.

 (b) Staff members of public or private agencies, institutions and facilities. Physical therapists and physical therapist assistants who are staff members of a medical or other public or private institution, school, facility or agency, and who, in the course of their employment, occupation or practice of their profession, come into contact with children shall immediately notify the person in charge of the institution, school, facility or agency or the designated agent of the person in charge when they have reasonable cause to suspect on the basis of their professional or other training or experience, that a child coming before them in their professional or official capacity is a victim of child abuse. Upon notification by the physical therapist or physical therapist assistant, the person in charge or the designated agent shall assume the responsibility and have the legal obligation to report or cause a report to be made in accordance with subsections (a), (c) and (d).

 (c) Reporting procedure. Reports of suspected child abuse shall be made by telephone and by written report.

 (1) Oral reports. Oral reports of suspected child abuse shall be made immediately by telephone to ChildLine, (800) 932-0313.

 (2) Written reports. Written reports shall be made within 48 hours after the oral report is made by telephone. Written reports shall be made on forms available from a county children and youth social service agency.

 (d) Written reports. Written reports shall be made in the manner and on forms prescribed by the Department of Public Welfare. The following information shall be included in the written reports, if available:

 (1) The names and addresses of the child and the parents or other person responsible for the care of the child, if known.

 (2) Where the suspected abuse occurred.

 (3) The age and sex of the subjects of the report.

 (4) The nature and extent of the suspected child abuse including any evidence of prior abuse to the child or siblings of the child.

 (5) The name and relationship of the persons responsible for causing the suspected abuse, if known, and any evidence of prior abuse by those persons.

 (6) Family composition.

 (7) The source of the report.

 (8) The person making the report and where that person can be reached.

 (9) The actions taken by the reporting source, including the taking of photographs and X-rays, removal or keeping of the child or notifying the medical examiner or coroner.

 (10) Other information which the Department of Public Welfare may require under 55 Pa. Code (relating to public welfare).

§ 40.203. Photographs, medical tests and X-rays of child subject to report.

 A physical therapist or physical therapist assistant may take or cause to be taken photographs of the child who is subject to a report and, if clinically indicated, cause to be performed a radiological examination and other medical tests on the child. Medical summaries or reports of the photographs, X-rays and relevant medical tests taken shall be sent to the county children and youth social service agency at the time the written report is sent or as soon thereafter as possible. The county children and youth social service agency shall have access to actual photographs or duplicates and X-rays and may obtain them or duplicates of them upon request.

§ 40.204. Suspected death as a result of child abuse—mandated reporting requirement.

 A physical therapist or physical therapist assistant who has reasonable cause to suspect that a child died as a result of child abuse shall report that suspicion to the coroner of the county where death occurred or, in the case where the child is transported to another county for medical treatment, to the coroner of the county where the injuries were sustained.

§ 40.205. Immunity from liability.

 Under 23 Pa.C.S. § 6318 (relating to immunity from liability), a physical therapist or physical therapist assistant who participates in good faith in the making of a report, cooperating with an investigation, testifying in a proceeding arising out of an instance of suspected child abuse or the taking of photographs shall have immunity from civil and criminal liability that might result by reason of the physical therapist's or physical therapist assistant's actions. For the purpose of any civil or criminal proceeding, the good faith of the physical therapist or physical therapist assistant shall be presumed. The Board will uphold the same good faith presumption in any disciplinary proceeding that might result by reason of a physical therapist's physical therapist assistant's actions in participating in good faith in the making of a report, cooperating with an investigation, testifying in a proceeding arising out of an instance of suspected child abuse or the taking of photographs.

§ 40.207. Noncompliance.

 (a) Disciplinary action. A physical therapist or physical therapist assistant who willfully fails to comply with the reporting requirements in § 40.202 (relating to suspected child abuse—mandated reporting requirements) will be subject to disciplinary action under section 11 of the act (63 P. S. § 1311).

 (b) Criminal penalties. Under 23 Pa.C.S. § 6319 (relating to penalties for failure to report or to defer), a physical therapist or physical therapist assistant who is required to report a case of suspected child abuse who willfully fails to do so commits a summary offense for the first violation and a misdemeanor of the third degree for a second or subsequent violation.

[Pa.B. Doc. No. 12-2468. Filed for public inspection December 21, 2012, 9:00 a.m.]



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