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| THE GENERAL ASSEMBLY OF PENNSYLVANIA |
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| HOUSE BILL |
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| INTRODUCED BY BARRAR, ADOLPH, BOYD, GEIST AND SIPTROTH, FEBRUARY 2, 2009 |
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| REFERRED TO COMMITTEE ON PROFESSIONAL LICENSURE, FEBRUARY 2, 2009 |
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| AN ACT |
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1 | Amending the act of July 2, 1993 (P.L.345, No.48), entitled "An |
2 | act empowering the General Counsel or his designee to issue |
3 | subpoenas for certain licensing board activities; providing |
4 | for hearing examiners in the Bureau of Professional and |
5 | Occupational Affairs; providing additional powers to the |
6 | Commissioner of Professional and Occupational Affairs; and |
7 | further providing for civil penalties and license |
8 | suspension," defining "discipline" and "victim"; further |
9 | providing for additional powers of the boards and commissions |
10 | within the Bureau of Professional and Occupational Affairs; |
11 | and providing for mandatory restitution and mandatory |
12 | repayment of cost of prosecution. |
13 | The General Assembly of the Commonwealth of Pennsylvania |
14 | hereby enacts as follows: |
15 | Section 1. Sections 1 and 5(b) of the act of July 2, 1993 |
16 | (P.L.345, No.48), entitled, "An act empowering the General |
17 | Counsel or his designee to issue subpoenas for certain licensing |
18 | board activities; providing for hearing examiners in the Bureau |
19 | of Professional and Occupational Affairs; providing additional |
20 | powers to the Commissioner of Professional and Occupational |
21 | Affairs; and further providing for civil penalties and license |
22 | suspension," are amended to read: |
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1 | Section 1. Definitions. |
2 | The following words and phrases when used in this act shall |
3 | have the meanings given to them in this section unless the |
4 | context clearly indicates otherwise: |
5 | "Disciplinary matter." Any matter subject to a licensing |
6 | board's or commission's jurisdiction in which the licensing |
7 | board or commission has the authority to refuse, suspend, revoke |
8 | or limit a license, registration, certificate or permit or to |
9 | impose a civil penalty or other discipline under any act. |
10 | "Discipline." A sanction imposed by a licensing board or |
11 | licensing commission upon an individual for a violation of a |
12 | practice act or a regulation of a licensing board or licensing |
13 | commission. |
14 | "Licensing boards." Those departmental or administrative |
15 | boards under the Bureau of Professional and Occupational Affairs |
16 | in the Department of State. |
17 | "Licensing commissions." Those departmental or |
18 | administrative commissions under the Bureau of Professional and |
19 | Occupational Affairs in the Department of State. |
20 | "Victim." An individual who has sustained injury to person |
21 | or property as a direct result of acts or omissions on the part |
22 | of an individual upon whom discipline is being imposed in a |
23 | disciplinary matter. |
24 | Section 5. Civil penalties. |
25 | * * * |
26 | (b) Additional powers.--In addition to the disciplinary |
27 | powers and duties of the boards and commissions within the |
28 | Bureau of Professional and Occupational Affairs under their |
29 | respective practice acts, boards and commissions shall have the |
30 | power, respectively: |
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1 | (1) To impose discipline on any licensee, registrant, |
2 | certificate holder or permit holder who violates a lawful |
3 | disciplinary order of the board. |
4 | (2) To impose discipline on any licensee, registrant, |
5 | certificate holder or permit holder who aids and abets the |
6 | unlicensed practice of a profession, occupation or business. |
7 | (3) To levy a civil penalty of not more than $1,000 on |
8 | any corporation, partnership, institution, association or |
9 | sole proprietorship which aids and abets any individual in |
10 | the unlicensed practice of a profession. This penalty shall |
11 | not, however, be levied against any person solely as a |
12 | consequence of that person being a patient or client of the |
13 | unlicensed individual. |
14 | (4) To impose mandatory restitution and mandatory |
15 | repayment of the cost of investigation and prosecution in a |
16 | disciplinary matter as set forth in section 5.1. |
17 | * * * |
18 | Section 2. The act is amended by adding a section to read: |
19 | Section 5.1. Mandatory restitution and mandatory repayment of |
20 | cost of prosecution. |
21 | (a) Requirement.--In all disciplinary matters before a |
22 | licensing board or commission where the board or commission |
23 | imposes discipline, the licensing board or commission shall |
24 | order the individual to make restitution to the victim. In |
25 | addition, the licensing board or commission shall order the |
26 | individual to repay the cost of investigation and prosecution by |
27 | the Department of State. Restitution and repayment of |
28 | investigation and prosecution costs shall be in addition to any |
29 | other sanction imposed by a licensing board or commission. |
30 | (b) Losses recoverable.--A victim may recover losses |
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1 | sustained to person or property as a direct result of acts or |
2 | omissions on the part of an individual upon whom discipline is |
3 | imposed in a disciplinary matter, as set forth in this section. |
4 | (c) Mandatory nature.--The licensing board or commission |
5 | shall order full restitution to the victim and full repayment of |
6 | the cost of investigation and prosecution regardless of the |
7 | financial resources of the individual. |
8 | (d) Reduction.--The licensing board or commission shall not |
9 | reduce a restitution award by any amount received from the Crime |
10 | Victim's Compensation Fund or any other governmental agency but |
11 | shall order that the individual pay any restitution ordered for |
12 | losses previously compensated by the Crime Victim's Compensation |
13 | Fund or other governmental agency to the fund or the agency. |
14 | Further, the licensing board or commission shall not reduce a |
15 | restitution award by any amount received by an insurance company |
16 | but shall order the individual to pay any restitution ordered |
17 | for loss previously compensated by an insurance company to the |
18 | insurance company. |
19 | (e) Priority.--If restitution to more than one victim is set |
20 | by the licensing board or commission, the board or commission |
21 | shall set the priority of payment. However, when establishing |
22 | priorities, the licensing board or commission shall order |
23 | payment in the following order: |
24 | (1) The victim. |
25 | (2) The Crime Victim's Compensation Fund. |
26 | (3) Another governmental agency which has provided |
27 | reimbursement to the victim as a result of the individual's |
28 | conduct. |
29 | (4) An insurance company which has provided |
30 | reimbursement to the victim as a result of the individual's |
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1 | conduct. |
2 | (f) Judgment.--Restitution to the victim and repayment of |
3 | costs ordered pursuant to this section shall be a judgment in |
4 | favor of the Bureau of Professional and Occupational Affairs |
5 | upon the individual subject to the order of the licensing board |
6 | or commission. The Attorney General shall be responsible for |
7 | enforcing the judgment in courts of competent jurisdiction. |
8 | (g) Preservation of assets subject to restitution.--Upon |
9 | application of the Attorney General, the court may enter a |
10 | restraining order or injunction or take any other action to |
11 | preserve the availability of property which may be necessary to |
12 | satisfy a restitution or repayment order. |
13 | (h) Period of time.--Notwithstanding any provision of law to |
14 | the contrary, the period of time during which a judgment shall |
15 | have full effect may exceed the maximum period for the |
16 | revocation or suspension of a license, registration, certificate |
17 | or permit. |
18 | (i) Collection.--Restitution shall be made by the individual |
19 | to the licensing board or commission. Notwithstanding any |
20 | provision of law to the contrary, the Commissioner of |
21 | Professional and Occupational Affairs shall collect the |
22 | restitution on behalf of the licensing board or commission. The |
23 | commissioner shall maintain records of the restitution order and |
24 | its satisfaction and shall forward to the victim the restitution |
25 | ordered. |
26 | (j) Cost of investigation and prosecution.--Repayment of |
27 | costs associated with investigation and prosecution shall be |
28 | made by the individual to the licensing board or commission. |
29 | Notwithstanding any provision of law to the contrary, the |
30 | Commissioner of Professional and Occupational Affairs shall |
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1 | collect the cost of repayment on behalf of the licensing board |
2 | or commission. The moneys shall be deposited into the |
3 | Professional Licensure Augmentation Account. |
4 | (k) Payment.--Not less than 75% of all moneys collected by |
5 | the Commissioner of Professional and Occupational Affairs shall, |
6 | until satisfaction of the individual's restitution obligation, |
7 | be used to pay restitution to a victim. Any remaining money |
8 | shall be used to repay the cost of investigation and |
9 | prosecution. |
10 | (l) Amount.--At the time of imposition of discipline, the |
11 | licensing board or commission shall specify the amount of |
12 | restitution to the victim and the amount of repayment to the |
13 | Department of State. The order of restitution and the order to |
14 | repay the cost of investigation and prosecution may be made in a |
15 | lump sum, by monthly installments or any other method the |
16 | licensing board or commission deems just. The amount and the |
17 | method of payment shall not be reviewable in any court. |
18 | (m) Responsibility of prosecuting attorney.--It shall be the |
19 | responsibility of the prosecuting attorney of a licensing board |
20 | or commission to: |
21 | (1) Make a recommendation to the licensing board or |
22 | commission as to the amount of restitution to be ordered. The |
23 | recommendation shall be based on information solicited by the |
24 | prosecuting attorney and received from the victim, the |
25 | victim's family or victim's representative. If the |
26 | prosecuting attorney has solicited information from the |
27 | victim, the victim's family or victim's representative and |
28 | has received no response, the prosecuting attorney shall, |
29 | based upon available information, make a recommendation. |
30 | (2) Provide the licensing board or commission a |
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1 | calculation of the cost of investigation and prosecution |
2 | incurred by the Department of State. |
3 | (n) Alteration of restitution order.--The licensing board or |
4 | commission may order the amount of restitution recommended by |
5 | the prosecuting attorney or order another sum. If the licensing |
6 | board or commission orders a sum other than that recommended by |
7 | the prosecuting attorney, the board or commission shall state on |
8 | the record its reasons and conclusions. |
9 | (o) Preservation of private remedies.--No judgment or order |
10 | of restitution shall prevent the victim from recovering, by |
11 | appropriate action, compensation from the individual as |
12 | otherwise provided by law. However, any civil award shall be |
13 | reduced by any amount paid pursuant to the restitution ordered |
14 | pursuant to this section. |
15 | Section 3. This act shall take effect in 60 days. |
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