Pennsylvania Bulletin, Vol 44, No. 29. July 19, 2014

• Jurisdiction: Pennsylvania
• Library: Pennsylvania Register
• Published date: 19 July 2014
• Year: 2014

RULES AND REGULATIONS

Title 34—LABOR

AND INDUSTRY

DEPARTMENT OF LABOR AND INDUSTRY

[ 34 PA. CODE CH. 225 ]

Prohibition of Excessive Overtime in Health Care

Act Regulations

The Department of Labor and Industry (Department)

adds Chapter 225 (relating to Prohibition of Excessive

Overtime in Health Care Act regulations) to read as set

forth in Annex A.

A. Statutory Authority

This final-form rulemaking is promulgated under sec-

tion 5 of the Prohibition of Excessive Overtime in Health

Care Act (act) (43 P. S. § 932.5), which authorizes the

Department to promulgate and amend rules and regula-

tions necessary to administer the act.

B. Procedural History

The notice of proposed rulemaking was submitted to

the majority and minority Chairpersons of the House

Labor and Industry Committee and the Senate Labor and

Industry Committee (Committees) and the Independent

Regulatory Review Commission on (IRRC) on June 26,

2012. The proposed rulemaking was published at 42 Pa.B.

4468 (July 14, 2012). The Department submitted the

final-form rulemaking to IRRC and the Committees on

January 16, 2014. The final-form rulemaking was deemed

approved by the Committees on February 26, 2014. At a

public meeting on February 27, 2014, IRRC disapproved

the final-form rulemaking. IRRC issued its disapproval

order to the Department and the Committees on March

17, 2014. On April 28, 2014, the Department submitted a

revised final-form rulemaking to IRRC and the Commit-

tees to respond to the objections raised by IRRC in its

disapproval order. At a public meeting on May 22, 2014,

IRRC approved the revised final-form rulemaking. The

revised final-form rulemaking was deemed approved by

the Committees on June 5, 2014.

C. Background and Description of the Rulemaking

Final-form rulemaking

The act prohibits health care facilities or employers

that provide clinical care services from requiring its

employees to work in excess of an agreed to, predeter-

mined and regularly scheduled daily work shift. The act

allows for mandating overtime for unforeseeable emer-

gent circumstances and requires health care facilities or

employers to use reasonable efforts to obtain staff before

overtime may be mandated. The act prohibits retaliation

against employees for refusing to work in excess of its

limitation and provides for the Department to hold

hearings, implement administrative fines and order cor-

rective action for violations of the act. The Department’s

Bureau of Labor Law Compliance (Bureau) has enforced

the act since it took effect on July 1, 2009.

Beginning in October 2008, the Department met with

numerous organizations whose members would be af-

fected by the act and the regulations. Additionally, on

December 3, 2009, the Department held a public meeting

in which it provided information regarding the regulatory

process and received testimony from stakeholders affected

by the act and the regulations. The following organiza-

tions presented testimony at the stakeholders’ meeting:

the Pennsylvania Association of Staff Nurses & Allied

Professionals (PASNAP); Pennsylvania Advocacy and Re-

sources for Autism and Intellectual Disabilities; the Hos-

pital & Healthsystem Association of Pennsylvania (HAP);

the Service Employees International Union (SEIU); and

Bruce Ludwig, Esq. The following groups provided writ-

ten comments: the Department of Public Welfare; the

Department of Corrections; the Pennsylvania State Edu-

cation Association (PSEA); the Department of Military

and Veterans Affairs; PASNAP; the Pennsylvania Advo-

cacy and Resources for Autism and Intellectual Disabili-

ties; HAP; the SEIU; and Bruce Ludwig, Esq. The

Department also reviewed the rulemaking with the fol-

lowing Commonwealth agencies: the Department of Pub-

lic Welfare; the Department of Corrections; the Depart-

ment of Military and Veterans Affairs; and the Office of

Administration.

The regulations are required and necessary to imple-

ment and clarify the complaint, investigation procedures

and administrative penalty assessment provisions of the

act. The regulations also require the Department to

provide complainants notice of violations and appeals,

and copies of Department determinations. This rule-

making will implement and clarify the complaint, investi-

gation procedures and administrative penalty assessment

provisions of the act.

Section 225.1 (relating to purpose and scope) states

that the purpose of the regulations is to implement

complaint and investigation procedures and administra-

tive penalty assessment provisions. Section 225.2 (relat-

ing to definitions) provides definitions for terms used in

the regulations. When applicable, these definitions mirror

the definitions in the act. Section 225.3 (relating to

complaint and investigation procedure) sets forth the

complaint and investigation procedure, and establishes

the time period to file a complaint, the information

required in the complaint and the time period to correct

the complaint if required information is missing. Section

225.4 (relating to administrative penalties) sets forth the

administrative penalties as provided by the act and the

factors the Department may use as a basis to calculate

penalties. Section 225.5 (relating to administrative notice

of violation and proposed penalty) sets forth the proce-

dure the Bureau will use to issue administrative decisions

and proposed penalties. This section allows health care

facilities and employers to request a reduction in penal-

ties and establishes the time period and manner in which

that request must be made. Section 225.6 (relating to

contesting an administrative decision and proposed pen-

alty) allows a health care facility or employer to contest

an administrative decision and request a hearing. Section

225.7 (relating to hearing) establishes the hearing proce-

dure for contested administrative decisions. The hearing

is de novo and the parties and the complainant will be

notified of the hearing date and location. Section 225.8

(relating to petition to intervene) provides the procedure

for interested parties to intervene. The complainant may

intervene by notifying the Department in writing of his

request within the prescribed time period. Section 225.9

(relating to adjudications) provides that the Secretary of

Labor and Industry will issue written adjudications in-

cluding the relevant findings, conclusions and the ratio-

nale for the adjudication. Section 225.10 (relating to

further appeal rights) provides that an aggrieved party

4483

PENNSYLVANIA BULLETIN, VOL. 44, NO. 29, JULY 19, 2014

may file an appeal to Commonwealth Court within 30

days of the mailing date of the decision.

Revised final-form rulemaking

In response to IRRC’s disapproval order, the Depart-

ment revised § 225.3 of the final-form rulemaking to

require the Bureau to begin the investigation of a com-

plaint within 60 days of receipt. In addition, this section

was amended to require health care facilities and employ-

ers to establish a recordkeeping system for circumstances

when employees are required to work overtime. Under

this requirement, records shall be kept for 3 years.

The Department revised § 225.4(b)(3) in response to

IRRC’s disapproval order. IRRC was concerned with how

the Department would implement the ‘‘good faith’’ factor

in penalty assessment. The Department changed the

‘‘good faith’’ factor to ‘‘remedial efforts.’’ The Department

will consider voluntary ‘‘remedial efforts’’ designed to

prevent future violations.

The Department revised § 225.5(e) in response to IRRC’s

concern about notification of complainant on investigation

closure. A requirement that the written notice when a

violation is not found will include a statement of reason

was added.

The Department revised § 225.8(b)(1)(ii) to specifically

include complainants’ union or trade association represen-

tatives in the enumerated list of those who may have an

interest to intervene in a Department hearing concerning

violations of the act.

D. Comments

Notice of proposed rulemaking was published at 42

Pa.B. 4468. The Department received comments from

IRRC; Representative William F. Keller; Richard E. Bur-

ridge, PSEA; David Fillman, American Federation of

State, County and Municipal Employees, Council 13

(AFSCME); Richard Bloomingdale, Pennsylvania AFL-

CIO (AFL-CIO); Betsy Snook, Pennsylvania State Nurses

Association (PSNA); William Cruice, PASNAP; Neil Bisno,

SEIU Healthcare; and Paula Bussard, HAP.

General comments

Comment: IRRC commented that the Department

should explain in the preamble and the Regulatory

Analysis Form (RAF) why it is choosing to implement

only administrative procedures in the regulations.

Response: Clarifications concerning the act and what

constitutes a violation will be resolved through decisions

made in the administrative hearing process. The Depart-

ment anticipates that as more violations move through

the administrative hearing process the substantive por-

tions of the act will be defined based on real violations

and issues. The regulations should aid the administrative

hearing process and bring about administrative decisions

on the substantive matters in the act.

The Department’s public hearing and the comments

provided from stakeholders in 2008—2010 indicated that

there were very few issues on which all parties would

agree. The Department determined that the best place to

start in this difficult area would be with the complaint

and administrative process. If the Department could

establish a process for receiving, investigating and adjudi-

cating complaints, substantive issues would be addressed

in the Department’s administrative agency decisions and

in appellate court decisions.

Comment: IRRC commented that the Department

should explain why the regulations do not address the

act’s prohibition of retaliation.

Response: As the preamble of the proposed rulemaking

stated, the regulations establish the act’s complaint and

investigation procedures, and administrative assessment

provisions. The act speaks for itself and clearly estab-

lishes its prohibition against retaliation. It is not neces-

sary to repeat that prohibition in a procedural regulation.

However, to more clearly address the act’s prohibition

against retaliation and to show that the Department will

issue orders when it finds retaliation, the Department

amended § 225.4 to clearly state that it may order a

health care facility or employer to ‘‘remedy unlawful

adverse employment decisions.’’

Comment: IRRC commented that the Department

should explain why the regulations do not address the

act’s general prohibition of mandatory overtime.

Response: As the preamble of the proposed rulemaking

stated, the regulations establish the act’s complaint and

investigation procedures, and administrative assessment

provisions. It also includes the procedure to notify parties

of violations, and the appeals and hearing procedures. It

does not address the scope of the act or substantive issues

concerning the act. The act clearly establishes the prohi-

bition of mandatory overtime.

Comment: IRRC commented that the preamble and the

RAF did not address why certain administrative and

judicial processes in the regulations are appropriate. For

example, the Department does not explain why the

aggrieved employee does not have a right to a hearing to

contest an adverse administrative decision.

Response: Section 6 of the act (43 P. S. § 932.6) gives

the Department the discretion to impose penalties and

issue orders to correct violations of the act. This section

also subjects the imposition of penalties and corrective

orders to appeal under 2 Pa.C.S. §§ 501—508 and 701—

704 (relating to Administrative Agency Law). The act does

not give complainants or parties other than the defendant

employer rights of appeal to the Department’s determina-

tion. The courts have generally recognized an agency’s

administrative discretion in determining which cases to

pursue for enforcement. Absent an abuse of discretion,

the courts will not disturb an agency exercising its

discretion.

Comment: IRRC commented that the Department

states that it ‘‘does not have adequate experience with

complaints, violations and appeals to make any estimate

of costs.’’ Given that the Department has been enforcing

the act since July 2009, the Department should use this

experience to estimate the costs of implementing the

regulations. This should be included in the final-form

RAF and preamble.

Response: The Department receives approximately 250

complaints of alleged violations of the act per year. The

Department investigates all complaints it receives. The

total cost of this program has been approximately $42,000

per year.

Comment: IRRC stated that it strongly encourages the

Department to continue dialogue with stakeholders as it

develops the final-form regulations. IRRC recommended

that the Department publish an Advanced Notice of Final

Rulemaking to allow the opportunity to review and

resolve any remaining issues prior to submittal of a

final-form regulation.

Response: At IRRC’s suggestion, the Department did

continue its dialogue with stakeholders. On July 31, 2013,

the Department met with Representative Keller and

members of his staff. On August 1, 2013, the Department

4484 RULES AND REGULATIONS

PENNSYLVANIA BULLETIN, VOL. 44, NO. 29, JULY 19, 2014