PENNSYLVANIA AMENDS LAW OF PROFESSIONAL AND OCCUPATIONAL AFFAIRS
Senate Bill No. 354, now known as Act No. 6 of 2018 (the Amendment”), amends Act No. 48 of 1993 (the “Act”) regarding licensure hearings by the Bureau of Professional and Occupational Affairs (the “Bureau”) to require self-reporting of events impacting professional licensure and to authorize temporary license suspensions and expungement of disciplinary records. The Amendment specifically requires self-reporting of sanctions and criminal proceedings by licensees, authorizes license suspension proceedings in the event of danger to the public and enables proceedings to expunge disciplinary records for failure to obtain continuing education and practice with a lapsed license. The Amendment redefines “Licensee” as “a person holding a license, registration, certificate or permit with a licensing board or commission under the [Bureau] in the Department of State” and “license” shall be used in this article to refer to such a license, registration, certificate or permit. The Amendment is important because it covers all 29 licensing boards and commissions (“Boards”) supervised by the Bureau, including those governing medicine, cosmetology, and accountancy, and all other professions and occupations regulated by the Boards, approximately 250 (the “Licensed Vocations”).
Pennsylvania authorizes the Boards to regulate the Licensed Vocations through statutes codified at title 63 P.S. chapters 1 through 40. Those Boards operate with rules specific to each Licensed Vocation, and promulgate regulations consistent with those statutes. In 1963, the Commonwealth established the Bureau under the Pennsylvania Department of State (the “Department”) to provide administrative, logistical and legal support services to the Boards. The Bureau assists each Board with licensure from application through issuance and, with the General Counsel, prosecutions of violations and enforcement of sanctions. The Commissioner of the Bureau (“Commissioner”) is a member of each Board under jurisdiction of the Department with two exceptions, the Navigation Commission for the Delaware River and its Navigable Tributaries and the State Board of Certified Real Estate Appraisers. The Bureau is implementing a new Pennsylvania Licensing System (“PALS”) to supersede the current MyLicense System for which each licensee will have an account.
Under the Amendment, each licensee is required to give written notice to the respective Board within 30 days of “(1) [a]disciplinary action taken against the licensee by a licensing agency of another jurisdiction… [and]…(2) [a] finding or verdict of guilt, an admission of guilt, a plea of nolo contendere, probation without verdict, a disposition in lieu of trial or an Accelerated Rehabilitative Disposition of any felony or misdemeanor offense.” 63 P.S. § 2202.1(a). Failure to report timely can result in sanctions for violation imposed by the respective Board. Reports of disciplinary actions and criminal sanctions can directly bear on the validity of the license. Self-reporting is consistent with the revocable privilege granted by the Board in the form of the license and the communication duties facilitated by PALS. Rep. Rep. Harry Readshaw, D-Allegheny, said about SB No. 354 after it was approved by the General Assembly, “This bill and the provisions that strengthen reporting requirements to the bureau will ensure that every board or commission has the information needed to protect the health and safety of the citizens of the Commonwealth and that the requirements are the same throughout each board and commission.”
Protection of the public is also drafted in another provision of the Amendment, the authorization of Boards to suspend temporarily the license of a person “under circumstances as determined by the board or commission to be an immediate and clear danger to the public health and safety.” 63 P.S. § 2203.1(a). The Board may issue a suspension order without hearing or the presence of the licensee but upon notice to the licensee and a written statement of all allegations against the licensee. Within thirty (30) days following the order, the Board must “conduct a preliminary hearing to determine whether there is a prima facie case supporting the suspension.” 63 P.S. § 2203.1(b). “Prima facie” means that adequate evidence supports each element of the violation for which the suspension order issued. At the hearing, the licensee may be present with counsel, “cross-examine witnesses, inspect physical evidence, call witnesses, offer evidence and testimony and make a record of the proceedings.” 63 P.S. § 2203.1(b). If there is no adequate showing of evidence, the license is to be restored immediately. If there is sufficient evidence to suspend the license, the licensee may later request that the license restored as otherwise provided.
The Amendment provides that the disciplinary record of a licensee may be expunged following minor violations and under certain conditions. “Expunge” means removal of the record by “(1) permanently sealing the affected record from public access; (2) deeming the proceedings to which the affected record refers as not having occurred; and except with respect to any subsequent application for expungement, affording the affected party the right to represent that no record exists regarding the subject matter of the affected record.” 63 P.S. § 2201. Accordingly, the disciplinary record is not destroyed; it is simply deemed not to exist except for the licensee’s application for expungement and otherwise as provided by law. The Amendment specifically states that “[n]othing [in the expungement section of the Amendment] shall prohibit a licensing board or commission from using a previous discipline for any regulatory purpose or from releasing records from a previous discipline upon request from law enforcement or other governmental body as permitted by law.” 63 P.S. § 2205(a)(3).
The limited circumstances warranting an expungement of disciplinary records by the Commissioner are where “the imposition of the discipline was for a violation involving failure to complete continuing education requirements or practicing for six months or less on a lapsed license….” 63 P.S. § 2205(a)(2) (the “Expungement Criteria”). However, expungement under those circumstances is subject to enumerated conditions as follows: (i) written application must follow at least four years from the end of the disciplinary proceeding; (ii) the disciplinary record must be the only such record of the licensee with the Commissioner or any of the Boards; (iii) the licensee must not be subject to a current investigation related to conduct of any Licensed Vocation; (iv) the licensee must not be subject to any current disciplinary proceedings and all fines and fees must be paid; (v) the Commissioner shall not have previously expunged a disciplinary record of the licensee; (vi) the disciplinary records cannot involve any subject other than the Expungement Criteria; and (vii) the licensee shall pay all costs associated with the expungement. Accordingly, the Commissioner may expunge a disciplinary record related to minor matters not affecting the public health and safety when the licensee is otherwise in good standing.
The Amendment was approved by Governor Wolf on February 5, 2018 and will take effect 60 days later. References in this article to statutory section numbers containing terms of the Amendment are written assuming the effectiveness of the Amendment. You can check on a licensee in the Bureau’s PALS through this web link: https://www.pals.pa.gov/#/page/search.
© 2018 Robert J. Hobaugh, Jr.