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Pennsylvania Reduces Barriers to Occupational Licensure

Pennsylvania has reduced barriers to occupational licensure for new residents of the Commonwealth by enacting Act 41 of 2019 (the Act”) which allows state boards and commissions of licensure (“Boards”) under the Bureau of Professional and Occupational Affairs (“Bureau”) to authorize endorsement based on out-of-state credentials.  The Act continues a trend to make Pennsylvania open for business by granting authority for Boards to issue temporary and permanent endorsements to persons certified elsewhere. The chief criteria is that any such Board determines that the foreign “requirements are substantially equivalent to or exceed the requirements established in this Commonwealth.” The Act reduces delays for newly-established Pennsylvanians to comply with full domestic licensure requirements, including education and testing.  The policy behind the Act further recognizes that by enhancing our workforce, we provide more skilled workers for Pennsylvania businesses and invite talented people to move to the Commonwealth.

This welcoming policy addresses people who have discretion to move to Pennsylvania and those who follow spouses who must move here. Examples include spouses of people who must move such as military personnel and spouses of people whose careers require a willingness to move such as athletic coaches, news reporters and anchors, and specialized engineers, including those whose talents help establish new business facilities in the Commonwealth. The Bureau comprises 29 Boards whose licensure covers professionals, including emigrant professionals, such medical workers, engineers, hair stylists, accountants and architects. The mission of the Bureau is to protect the health and safety of the public from unethical or fraudulent practitioners.

The Act amends Act 48 of 1993, an unconsolidated statute (the “Statute”) which authorizes the General Counsel or his designee to  issue subpoenas in disciplinary matters before a Board to investigate alleged violations of the disciplinary matters administered by such Board. The Act adds section 6.1 to the Statute. This addition covers the issuance of licenses, certificates, registrations, and permits to practice in the Commonwealth (each, an “Endorsement”) and provisional Endorsements. The Endorsements and provisional Endorsements are valid notwithstanding enabling laws for Boards regarding licensure by reciprocity or laws governing specific professions which already provide for licensure by reciprocity between states for professionals of the class addressed by those laws. 

The applicant to a Board relying on the Act bears the burden of satisfying specific criteria before the Board must issue an Endorsement. According to §6(a) of the Statute, a Board shall issue an Endorsement on a showing that the applicant (1) holds an Endorsement from another state, territory or country (each, a “Jurisdiction”) and that Jurisdiction’s requirements “ are substantially equivalent to or exceed the requirements established in this Commonwealth;” (2) has competency in the profession including having completed continuing education or having practiced two of the five years preceding the application; (3) has not committed any act that constitutes grounds for refusal, suspension or revocation of an Endorsement unless the Board determines that such act “should not be an impediment” to the grant of a Pennsylvania Endorsement; (4) has not been disciplined in the Jurisdiction unless the Board determines that the discipline “should not be an impediment” to the grant of a Pennsylvania Endorsement; and (5) pays the fee established by the Board.

Boards may issue provisional Endorsements to an applicant who is working on satisfaction of the remaining requirements for an Endorsement. The provisional Endorsement does not lapse under §6(b) of the Statute unless one of the following occurs: (1) the related Board denies the underlying Endorsement; (2) the occurrence of the date that the provisional Endorsement lapses; or (3) the applicant fails to comply with the terms of the provisional Endorsement.

The Act should be read as a framework for regulations that address issues raised by the Act. Those regulations are required by §2 of the Act to be issued by each Board within 18 months of its effective date. The Act was approved by Governor Tom Wolf on July 1, 2019, and took effect 60 days thereafter. Those regulations establish criteria for objective and uniform decisions where discretion could yield disparate outcomes under similar facts.

The following are issues raised by the Act for which boards and commissions need regulations to assure uniformity of decisions in issuing Endorsements. First, how different may a foreign Jurisdiction requirement be and still be “substantially similar” to the corresponding Pennsylvania requirement? Second, what criteria other than term of prior practice and continuing education may be used to demonstrate competency is a profession? Third, what acts subject to discipline or actual disciplines meted out by a foreign Jurisdiction may exist but “should not be an impediment” to the grant of an Endorsement?

The following are issues raised by the Act for which Boards need regulations in issuing provisional Endorsements. First, how many of the Commonwealth requirements must be met before a provisional Endorsement issues? Second, what are the cornerstone requirements that must be met? Third, what is the relationship between the outstanding compliance issues and the time to achieve them granted in a provisional Endorsement? Fourth, what monitoring dates should be set in a provisional Endorsement for the applicant to report his or her progress to the Board?

The Act received bipartisan support. It began as HB 1172, sponsored by Rep. Dave Hickernell (R-Lancaster and Dauphin Counties), Chair of the House Professional Licensure Committee, and minority Chair Harry Readshaw (D-Allegheny County). HB 1172 was approved by the House on June 25, 2019 and the Senate on June 26, 2019. The Governor supported HB1172 and made it a part of his proposed business reforms. According to a press release issued by the Governor’s Office on July 1, 2019, concurrently with his approval of the Act, the Governor has proposed other licensing reforms including “replacing 13 job licenses with less restrictive requirements that protect the public, returning continuing education requirements to levels in state law, repealing the automatic 10-year ban on licensing someone convicted of a drug felony, and making licensing requirements more efficient.” However the law enabling the Bureau changes, it will remain the Bureau’s task through the Boards to protect the public from unethical and fraudulent professionals. The Act is important because it should facilitate a stronger workforce and economy in Pennsylvania.

© 2019 Robert J. Hobaugh, Jr.