Current through Register Vol. 54, No. 49, December 7, 2024
Section 43b.404 - Consideration of criminal convictions(a)General rule. Except as provided in subsections (b), (c) or (d), when determining whether an individual with a criminal conviction qualifies for a license, certificate, permit or registration, a licensing board or commission within the Bureau will engage in a two-stage analysis of an applicant's criminal conviction, as follows: (1)First stage. The applicable board or commission will determine whether the individual's criminal conviction directly relates to the profession or occupation for which the individual seeks licensure by reviewing the schedules in §§ 43b.421-43b.452 (relating to schedules of criminal convictions).(2)Second stage-individualized assessment. The following apply: (i) If the individual's criminal conviction is on the applicable board's or commission's schedule, there shall be a rebuttable presumption that licensure, certification, permitting or registration of the individual would pose a substantial risk to the health and safety of the individual's patients or clients or the public or a substantial risk of further criminal convictions. The individual may rebut that presumption using the factors in paragraph (3). The applicable board or commission will conduct an individualized assessment using the factors in paragraph (3) to determine if a license, certificate, permit or registration may be granted notwithstanding the conviction.(ii) If the individual's criminal conviction is not on the applicable board's or commission's schedule, the board or commission will then determine whether, due to the nature of the criminal conviction, the licensure, certification, permitting or registration of the individual would pose a substantial risk to the health and safety of the individual's patients or clients or the public or a substantial risk of further criminal convictions. If so, the board or commission will conduct an individualized assessment using the factors set forth in paragraph (3). The individual may rebut the board's or commission's determination by showing evidence of rehabilitation as specified in the factors in paragraph (3).(3)Assessment factors. A board or commission within the Bureau will consider the following factors in determining whether an individual with a criminal conviction qualifies for issuance of a license, certificate, permit or registration: (i) Whether the criminal conduct for which the individual was convicted involved an act or threat of harm against the individual, including harm to the victim, the personal property of the victim or the reputation of the victim.(ii) The facts and circumstances surrounding the criminal conviction.(iii) The number of criminal convictions.(iv) An increase in age or maturity of the individual since the date of the criminal conviction.(v) The individual's criminal history, or lack of criminal history, after the date of the conviction.(vi) Evidence of successful completion of education and training activities, including those in a county correctional facility, a facility under the Department of Corrections or a comparable facility in another jurisdiction.(vii) References from employers or others, including personnel of the county correctional facility, a facility under the Department of Corrections or a comparable facility in another jurisdiction.(viii) Evidence of progress in personal rehabilitation since the conviction.(ix) Whether the individual meets all other licensing qualifications of the applicable practice act, including any examination requirements.(x) The individual's criminal history, or lack of criminal history, after the date of the criminal conviction while engaged in the same or similar profession or occupation.(xi) Other relevant factors regarding the fitness of the individual for licensure.(b)Sexual offenses. Under 63 Pa.C.S. § 3113(d) (relating to consideration of criminal convictions), a licensing board within the Bureau may not issue a license, certificate, permit or registration or otherwise allow an individual to practice as a health care practitioner if the individual has been convicted of a sexual offense as set forth in § 43b.421 (relating to schedule of sexual offenses).(c)Crimes of violence. Under 63 Pa.C.S. § 3113(e), an individual convicted of a crime of violence set forth in § 43b.422 (relating to crimes of violence) may be granted a license, certificate, permit or registration by a licensing board or commission within the Bureau if all of the following apply: (1) If the individual was incarcerated, at least 3 years have elapsed since release from incarceration. This 3-year period will be tolled for a violation of parole.(2) If the individual is serving or has served a sentence other than a period of confinement in a State or county correctional facility, at least 3 years have elapsed since imposition of sentence.(3) The individual has remained conviction-free during the relevant 3-year period specified in paragraph (1) or (2), as applicable.(4) The individual demonstrates significant rehabilitation since the criminal conviction.(5) The licensing board or commission determines, using the factors in subsection (a)(3), except subsection (a)(3)(viii), that issuance of a license, certificate, permit or registration to the individual does not pose a substantial risk to the health and safety of the individual's patients or clients or the public or a substantial risk of further criminal convictions.(d)Drug trafficking offenses.(1) The boards listed in paragraph (2) may not grant a license, certificate, permit or registration to an individual convicted of a drug trafficking offense unless: (i) At least 10 years have elapsed from the date of conviction.(ii) The individual satisfactorily demonstrates to the applicable board, utilizing the factors in subsection (a)(3), that the individual has made significant progress in personal rehabilitation since the conviction such that issuance of a license, certificate, permit or registration to the individual should not be expected to create a substantial risk to the health and safety of the individual's clients or patients or the public or a substantial risk of further criminal convictions.(iii) The individual otherwise satisfies the qualifications for the license, certificate, permit or registration sought.(2) This subsection applies to the following licensing boards within the Bureau: (i) The State Board of Chiropractic under section 501(a) of the Chiropractic Practice Act (63 P.S. § 625.501(a)), pertaining to requirements for licensure as a chiropractor.(ii) The State Board of Crane Operators under section 502(c) of the Crane Operator Licensure Act (63 P.S. § 2400.502(c)), pertaining to qualifications for licensure as a crane operator.(iii) The State Board of Dentistry under section 3(c) of the Dental Law (63 P.S. § 122(c)), pertaining to qualifications for licensure as a dentist.(iv) The State Board of Massage Therapy under section 5(a) of the Massage Therapy Law (63 P.S. § 627.5(a)), pertaining to qualifications for licensure as a massage therapist.(v) The State Board of Medicine under sections 13.5(a)(8) and 22(b) of the Medical Practice Act of 1985 (63 P.S. §§ 422.13e(a)(8) and 422.22(b)), pertaining to qualifications for licensure as a prosthetist, orthotists, pedorthist, orthotic fitter, physician, midwife or physician assistant.(vi) The State Board of Nursing under section 6(c) of the Professional Nursing Law (63 P.S. § 216(c)), pertaining to qualifications for licensure as a registered nurse or dietitian-nutritionist, and section 5 of the Practical Nurse Law (63 P.S. § 655), pertaining to qualifications for licensure as a practical nurse.(vii) The State Board of Optometry under section 4(d) of the Optometric Practice and Licensure Act (63 P.S. § 244.4(d)), pertaining to general qualifications for licensure as an optometrist.(viii) The State Board of Osteopathic Medicine under section 6(c) of the Osteopathic Medical Practice Act (63 P.S. § 271.6(c)), pertaining to qualifications for licensure as an osteopathic physician.(ix) The State Board of Pharmacy under sections 3(a) and (e) and 3.3(a) and (b) of the Pharmacy Act (63 P.S. §§ 390-3(a) and (e) and 390-3.3(a) and (b)), pertaining to qualifications for licensure as a pharmacist or registration as a pharmacy intern; and qualifications for pharmacy technician and pharmacy technician trainee registration.(x) The State Board of Physical Therapy under section 6(a) of the Physical Therapy Practice Act (63 P.S. § 1306(a)), pertaining to qualifications for licensure as a physical therapist.(xi) The State Board of Psychology under section 6(a) of the Professional Psychologists Practice Act (63 P.S. § 1206(a)), pertaining to qualifications for licensure as a psychologist.(xii) The State Board of Social Workers, Marriage and Family Therapists and Professional Counselors under section 7(a), (d), (e), (f) and (g) of the Social Workers, Marriage and Family Therapists and Professional Counselors Act (63 P.S. § 1907(a), (d), (e), (f) and (g)), pertaining to qualifications for licensure as a social worker, clinical social worker, marriage and family therapist, professional counselor and bachelor social worker.(xiii) The State Board of Veterinary Medicine under section 9(b)(4) of the Veterinary Medicine Practice Act (63 P.S. § 485.9(b)(4)), pertaining to qualifications for licensure as a veterinarian.Adopted by Pennsylvania Bulletin, Vol 54, No. 42. October 19, 2024, effective 10/19/2024