PRINTER'S NO. 2741
No. 2078 Session of 2003
INTRODUCED BY McCALL, SCRIMENTI, ARMSTRONG, BEBKO-JONES, BISHOP,
CORRIGAN, COSTA, COY, CREIGHTON, DALEY, DeLUCA, DENLINGER,
DeWEESE, FABRIZIO, FRANKEL, FREEMAN, GERGELY, GINGRICH,
GOODMAN, GRUCELA, HANNA, HARHAI, HARPER, HERMAN, HERSHEY,
HORSEY, JAMES, JOSEPHS, KOTIK, LAUGHLIN, LEACH, LEVDANSKY,
MARKOSEK, McILHATTAN, MELIO, NAILOR, OLIVER, PETRONE,
PHILLIPS, READSHAW, ROBERTS, ROEBUCK, SHANER, SOLOBAY,
STURLA, TANGRETTI, THOMAS, WALKO, WANSACZ, WASHINGTON,
WATSON, WOJNAROSKI AND YOUNGBLOOD, OCTOBER 8, 2003
REFERRED TO COMMITTEE ON PROFESSIONAL LICENSURE, OCTOBER 8, 2003
AN ACT
1 Amending the act of May 22, 1951 (P.L.317, No.69), entitled, as
2 amended, "An act relating to the practice of professional
3 nursing; providing for the licensing of nurses and for the
4 revocation and suspension of such licenses, subject to
5 appeal, and for their reinstatement; providing for the
6 renewal of such licenses; regulating nursing in general;
7 prescribing penalties and repealing certain laws," providing
8 for the regulation of massage; imposing powers and duties on
9 the State Board of Nursing and the Legislative Reference
10 Bureau; making an appropriation; and making editorial
11 changes.
12 The General Assembly of the Commonwealth of Pennsylvania
13 hereby enacts as follows:
14 Section 1. The title of the act of May 22, 1951 (P.L.317,
15 No.69), known as The Professional Nursing Law, amended December
16 17, 1959 (P.L.1888, No.689), is amended to read:
17 AN ACT
18 Relating to the practice of professional nursing; providing for
1 the licensing of nurses and for the revocation and suspension
2 of such licenses, subject to appeal, and for their
3 reinstatement; providing for the renewal of such licenses;
4 regulating nursing in general; prescribing penalties [and];
5 repealing certain laws; and regulating massage therapists.
6 Section 2. The act is amended by adding a chapter heading to
7 read:
8 CHAPTER 1
9 PRELIMINARY PROVISIONS
10 Section 3. Section 1 of the act, amended December 20, 1985
11 (P.L.409, No.109), is amended to read:
12 Section [1] 101. Short Title--This act shall be known and
13 may be cited as "The Professional Nursing and Massage Therapy
14 Law."
15 Section 4. The act is amended by adding sections to read:
16 Section 102. Definitions.--When used in this act, the
17 following words and phrases shall have the following meanings
18 unless the context provides otherwise:
19 "Board" means the State Board of Nursing.
20 Section 103. State Board of Nursing.--(a) The State Board
21 of Nursing shall consist of the following:
22 (1) The Commissioner of Professional and Occupational
23 Affairs.
24 (2) Three members representing the public at large,
25 appointed by the Governor with the advice and consent of a
26 majority of the members elected to the Senate. A member
27 appointed under this clause may not:
28 (i) have a financial interest in the provision of goods and
29 services for dietitian-nutritionists or massage therapists;
30 (ii) be a dietitian-nutritionist or massage therapist; nor
20030H2078B2741 - 2 -
1 (iii) have a household member who is a dietitian-
2 nutritionist or massage therapist.
3 (3) The following members appointed by the Governor with the
4 advice and consent of a majority of the members elected to the
5 Senate:
6 (i) Seven registered nurses graduated from schools of
7 nursing where practical and theoretical instruction is given, at
8 least four of whom must possess Masters' degrees in nursing, and
9 two of whom must be licensed practical nurses. All members under
10 this subclause must have been engaged in nursing in this
11 Commonwealth for the five-year period immediately preceding
12 appointment. In making appointments to the Board, the Governor
13 shall give due consideration to providing representation from
14 diversified fields of nursing, including, but not limited to,
15 specialized nurses of all types.
16 (ii) One licensed dietitian-nutritionist. The member
17 initially appointed under this subclause need not be licensed by
18 the licensure examination adopted by the Board but, at the time
19 of appointment, must have satisfied the education and experience
20 requirements of Chapter 3 for licensure.
21 (iii) One licensed massage therapist, appointed from a list
22 provided by a State or national massage therapy association. The
23 member initially appointed under this subclause need not be
24 licensed by the licensure examination adopted by the Board but,
25 at the time of appointment, must have satisfied the education
26 and experience requirements of Chapter 5 for licensure.
27 (b) The terms of a member of the Board under subsection
28 (a)(3)(i) shall be six years or until a successor has been
29 appointed and qualified but not longer than six months beyond
30 the six-year period. In the event that any of said members shall
20030H2078B2741 - 3 -
1 die or resign or otherwise become disqualified during his or her
2 term, his or her successor shall be appointed in the same way
3 and with the same qualifications and shall hold office for the
4 unexpired term. No member shall be eligible for appointment to
5 serve more than two consecutive terms.
6 (c) A majority of the members of the Board serving in
7 accordance with law shall constitute a quorum. Except for
8 temporary and automatic suspensions under section 322 or section
9 17.1 of the act of March 2, 1956 (1955 P.L.1211, No.376), known
10 as the "Practical Nurse Law," a member may not be counted as
11 part of a quorum or vote on any issue, unless he or she is
12 physically in attendance at the meeting.
13 (d) The Board shall select annually a chairman from among
14 its members. The Board shall select an executive secretary who,
15 with the approval of the Commissioner of Professional and
16 Occupational Affairs, need not be a member of the Board.
17 (e) Each member of the Board, except the Commissioner of
18 Professional and Occupational Affairs, shall receive sixty
19 dollars ($60) per diem when actually attending to the work of
20 the Board. Members shall also receive the amount of reasonable
21 traveling, hotel and other necessary expenses incurred in the
22 performance of their duties in accordance with Commonwealth
23 regulations.
24 (f) A member of the Board who fails to attend three
25 consecutive meetings shall forfeit his or her seat unless the
26 Commissioner of Professional and Occupational Affairs, upon
27 written request from the member, finds that the member should be
28 excused from a meeting because of illness or the death of a
29 family member.
30 (g) A public member who fails to attend two consecutive
20030H2078B2741 - 4 -
1 statutorily mandated training seminars in accordance with
2 section 813(e) of the act of April 9, 1929 (P.L.177, No.175),
3 known as "The Administrative Code of 1929," shall forfeit his or
4 her seat unless the Commissioner of Professional and
5 Occupational Affairs, upon written request from the public
6 member, finds that the public member should be excused from a
7 meeting because of illness or the death of a family member.
8 (h) The Board, with the approval of the Commissioner of
9 Professional and Occupational Affairs, shall also appoint and
10 fix the compensation of one or more State educational advisors
11 of schools of nursing and one or more State practice advisors,
12 who shall have the same qualifications as the nurse members of
13 the Board who hold Masters' degrees in nursing.
14 (i) The Board shall meet at least once every two months and
15 at such additional times as may be necessary to conduct the
16 business of the Board.
17 (j) The Board shall have the right and duty to establish
18 rules and regulations for the practice of professional nursing
19 and the administration of this act. Copies of such rules and
20 regulations shall be available for distribution to the public.
21 Section 5. The act is amended by adding a chapter heading to
22 read:
23 CHAPTER 3
24 PROFESSIONAL NURSES
25 Section 5.1. The act is amended by adding a section to read:
26 Section 301. Scope.--This chapter deals with professional
27 nurses.
28 Section 6. Sections 2 and 2.1 of the act, amended June 29,
29 2002 (P.L.651, No.99) and December 9, 2002 (P.L.1555, No.202),
30 are amended to read:
20030H2078B2741 - 5 -
1 Section [2] 302. Definitions.--When used in this [act]
2 chapter, the following words and phrases shall have the
3 following meanings unless the context provides otherwise:
4 (1) The "Practice of Professional Nursing" means diagnosing
5 and treating human responses to actual or potential health
6 problems through such services as casefinding, health teaching,
7 health counseling, and provision of care supportive to or
8 restorative of life and well-being, and executing medical
9 regimens as prescribed by a licensed physician or dentist. The
10 foregoing shall not be deemed to include acts of medical
11 diagnosis or prescription of medical therapeutic or corrective
12 measures, except as performed by a certified registered nurse
13 practitioner acting in accordance with rules and regulations
14 promulgated by the Board.
15 [(2) "Board" means the State Board of Nursing.]
16 (3) "Approved" means approved by the State Board of Nursing.
17 (4) "Diagnosing" means that identification of and
18 discrimination between physical and psychosocial signs and
19 symptoms essential to effective execution and management of the
20 nursing regimen.
21 (5) "Treating" means selection and performance of those
22 therapeutic measures essential to the effective execution and
23 management of the nursing regimen, and execution of the
24 prescribed medical regimen.
25 (6) "Human responses" means those signs, symptoms and
26 processes which denote the individual's interaction with an
27 actual or potential health problem.
28 (7) The "practice of dietetics-nutrition" means the
29 integration and application of principles derived from the
30 sciences of food nutrition, biochemistry, physiology, management
20030H2078B2741 - 6 -
1 and behavior to provide for all aspects of nutrition therapy for
2 individuals and groups, including nutrition therapy services and
3 medical nutrition therapy, compatible with dietitian-
4 nutritionist education and professional competence.
5 (8) "Department" means the Department of State of the
6 Commonwealth.
7 (9) "Licensed dietitian-nutritionist" means a dietitian-
8 nutritionist who holds a current license under this [act]
9 chapter.
10 (10) "Medical nutrition therapy" means the component of
11 nutrition therapy that concerns determining and recommending
12 nutrient needs based on nutritional assessment and medical
13 problems relative to diets prescribed by a licensed physician
14 including:
15 (i) tube feedings;
16 (ii) specialized intravenous solutions;
17 (iii) specialized oral solutions; and
18 (iv) interactions of prescription drugs with food or
19 nutrients.
20 (11) "Nutrition therapy services" means assessing the
21 nutritional needs of individuals and groups, considering the
22 resources and constraints in the practice setting, providing
23 nutrition counseling in health and disease, developing,
24 implementing and managing:
25 (i) nutrition therapy of; and
26 (ii) food service systems for individuals and groups and
27 maintaining appropriate standards of quality in food and
28 nutrition therapy services for individuals and groups.
29 (12) "Certified registered nurse practitioner" means a
30 registered nurse licensed in this Commonwealth who is certified
20030H2078B2741 - 7 -
1 by the board in a particular clinical specialty area.
2 (13) "Collaboration" means a process in which a certified
3 registered nurse practitioner works with one or more physicians
4 to deliver health care services within the scope of the
5 certified registered nurse practitioner's expertise. The process
6 includes all of the following:
7 (i) Immediate availability of a licensed physician to a
8 certified registered nurse practitioner through direct
9 communications or by radio, telephone or telecommunications.
10 (ii) A predetermined plan for emergency services.
11 (iii) A physician available to a certified registered nurse
12 practitioner on a regularly scheduled basis for referrals,
13 review of the standards of medical practice incorporating
14 consultation and chart review, drug and other medical protocols
15 within the practice setting, periodic updating in medical
16 diagnosis and therapeutics and cosigning records when necessary
17 to document accountability by both parties.
18 (14) "Drug Review Committee" means the committee established
19 in section [8.4] 313.4 whose function is to approve or
20 disapprove, by addition or deletion, the categories of drugs
21 that may be prescribed by certified registered nurse
22 practitioners.
23 Section [2.1] 303. State Board of Nursing.--[(a) The State
24 Board of Nursing shall consist of the Commissioner of
25 Professional and Occupational Affairs, three members appointed
26 by the Governor, with the advice and consent of a majority of
27 the members elected to the Senate, who shall be persons
28 representing the public at large, and nine members appointed by
29 the Governor, with the advice and consent of a majority of the
30 members elected to the Senate, six of whom shall be registered
20030H2078B2741 - 8 -
1 nurses, graduated from schools of nursing where practical and
2 theoretical instruction is given, at least three of whom shall
3 possess Masters' degrees in nursing, two of whom shall be
4 licensed practical nurses, and one of whom shall be a licensed
5 dietitian-nutritionist, and all of whom shall have been engaged
6 in nursing or the practice of dietetics-nutrition in this
7 Commonwealth for the five-year period immediately preceding
8 appointment. The dietitian-nutritionist member of the board
9 initially appointed need not be licensed by the licensure
10 examination adopted by the board but, at the time of
11 appointment, must have satisfied the education and experience
12 requirements of this act for licensure as a dietitian-
13 nutritionist. In making appointments to the Board, the Governor
14 shall give due consideration to providing representation from
15 diversified fields of nursing or dietetics-nutrition, including,
16 but not limited to, specialized nurses or dietitian-
17 nutritionists of all types. The persons representing the public
18 at large may not have a financial interest in the provision of
19 goods and services for dietitian-nutritionists and may not be a
20 dietitian-nutritionist or have a household member who is a
21 dietitian-nutritionist.
22 (b) The terms of the members of the Board shall be six years
23 or until his or her successor has been appointed and qualified
24 but not longer than six months beyond the six-year period. In
25 the event that any of said members shall die or resign or
26 otherwise become disqualified during his or her term, his or her
27 successor shall be appointed in the same way and with the same
28 qualifications and shall hold office for the unexpired term. No
29 member shall be eligible for appointment to serve more than two
30 consecutive terms.
20030H2078B2741 - 9 -
1 (c) A majority of the members of the Board serving in
2 accordance with law shall constitute a quorum. Except for
3 temporary and automatic suspensions under section 15.1 of this
4 act or section 17.1 of the act of March 2, 1956 (1955 P.L.1211,
5 No.376), known as the "Practical Nurse Law," a member may not be
6 counted as part of a quorum or vote on any issue, unless he or
7 she is physically in attendance at the meeting.
8 (d) The Board shall select annually a chairman from among
9 its members. The Board shall select an executive secretary who,
10 with the approval of the Commissioner of Professional and
11 Occupational Affairs, need not be a member of the Board.
12 (e) Each member of the Board, except the Commissioner of
13 Professional and Occupational Affairs, shall receive sixty
14 dollars ($60) per diem when actually attending to the work of
15 the Board. Members shall also receive the amount of reasonable
16 traveling, hotel and other necessary expenses incurred in the
17 performance of their duties in accordance with Commonwealth
18 regulations.
19 (f) The Board is subject to evaluation, review and
20 termination within the time and in the manner provided in the
21 act of December 22, 1981 (P.L.508, No.142), known as the "Sunset
22 Act."
23 (g) A member of the Board who fails to attend three
24 consecutive meetings shall forfeit his or her seat unless the
25 Commissioner of Professional and Occupational Affairs, upon
26 written request from the member, finds that the member should be
27 excused from a meeting because of illness or the death of a
28 family member.
29 (h) A public member who fails to attend two consecutive
30 statutorily mandated training seminars in accordance with
20030H2078B2741 - 10 -
1 section 813(e) of the act of April 9, 1929 (P.L.177, No.175),
2 known as "The Administrative Code of 1929," shall forfeit his or
3 her seat unless the Commissioner of Professional and
4 Occupational Affairs, upon written request from the public
5 member, finds that the public member should be excused from a
6 meeting because of illness or the death of a family member.
7 (i) The Board, with the approval of the Commissioner of
8 Professional and Occupational Affairs, shall also appoint and
9 fix the compensation of one or more State educational advisors
10 of schools of nursing and one or more State practice advisors,
11 who shall have the same qualifications as the nurse members of
12 the Board who hold Masters' degrees in nursing.
13 (j) The Board shall meet at least once every two months and
14 at such additional times as may be necessary to conduct the
15 business of the Board.
16 (k) The Board shall have the right and duty to establish
17 rules and regulations for the practice of professional nursing,
18 the practice of dietetics-nutrition and the administration of
19 this act. Copies of such rules and regulations shall be
20 available for distribution to the public.
21 (l) Any powers and duties imposed on the State Board of
22 Medicine or jointly imposed on the State Board of Medicine and
23 the State Board of Nursing, with respect to certified registered
24 nurse practitioners, by or pursuant to law or regulation shall,
25 after the effective date of this subsection, be exercised solely
26 by the State Board of Nursing. This subsection shall not apply
27 to 49 Pa. Code §§ 21.283(4) (relating to prescribing and
28 dispensing drugs) and 21.321 (relating to performance of tasks
29 without direction; performance of tasks without training; other)
30 unless the State Board of Nursing promulgates a regulation to
20030H2078B2741 - 11 -
1 exercise the duties imposed on the State Board of Medicine by
2 those sections.] The board shall administer this chapter.
3 Section 7. Section 2.2 of the act, amended June 29, 2002
4 (P.L.651, No.99), is amended to read:
5 Section [2.2] 304. Communication with Licensees.--The Board
6 shall communicate with licensees on issues affecting the
7 education, practice and regulation of nursing or dietetics-
8 nutrition on at least an annual basis.
9 Section 8. Section 3 of the act, amended December 20, 1985
10 (P.L.409, No.109), is amended to read:
11 Section [3] 305. Registered Nurse, Use of Title and
12 Abbreviation "R.N."; Credentials; Fraud.--Any person who holds a
13 license to practice professional nursing in this Commonwealth,
14 or who is maintained on inactive status in accordance with
15 section [11 of this act] 314, shall have the right to use the
16 title "registered nurse" and the abbreviation "R.N." No other
17 person shall engage in the practice of professional nursing or
18 use the title "registered nurse" or the abbreviation "R.N." to
19 indicate that the person using the same is a registered nurse.
20 No person shall sell or fraudulently obtain or fraudulently
21 furnish any nursing diploma, license, record, or registration or
22 aid or abet therein.
23 Section 9. Section 3.1 of the act, added June 29, 2002
24 (P.L.651, No.99), is amended to read:
25 Section [3.1] 305.1. Dietitian-Nutritionist License
26 Required.--(a) It shall be unlawful for any individual to hold
27 himself or herself forth as a licensed dietitian-nutritionist
28 unless he or she shall first have obtained a [licensed] license
29 pursuant to this [act] chapter. Only individuals who have
30 received licenses as licensed dietitian-nutritionists pursuant
20030H2078B2741 - 12 -
1 to this [act] chapter may use the letters "L.D.N." in connection
2 with their names.
3 (b) Nothing in this section shall be construed to require or
4 preclude third-party insurance reimbursement. Nothing herein
5 shall preclude an insurer or other third-party payor from
6 requiring that a licensed dietitian-nutritionist obtain a
7 referral from a licensed physician, dentist or podiatrist or
8 that a licensed dietitian-nutritionist file an evaluation and
9 treatment plan with the insurer or third-party payor, as a
10 precondition of reimbursement.
11 Section 10. Sections 4 and 4.1 of the act, amended or added
12 December 20, 1985 (P.L.409, No.109), are amended to read:
13 Section [4] 306. Unauthorized Practices; Acts not
14 Prohibited.--This [act] chapter confers no authority to practice
15 dentistry, podiatry, optometry, chiropractic, medicine or
16 surgery, nor does it prohibit--
17 (1) Home care of the sick by friends, domestic servants,
18 nursemaids, companions, or household aides of any type, so long
19 as such persons do not represent or hold themselves out to be
20 licensed nurses, licensed registered nurses, or registered
21 nurses; or use in connection with their names, any designation
22 tending to imply that they are licensed to practice under the
23 provisions of this [act] chapter nor services rendered by any
24 physicians, osteopaths, dentists or chiropractors, podiatrists,
25 optometrists, or any person licensed pursuant to the act of
26 March 2, 1956 (P.L.1211, No.376), known as the "Practical Nurse
27 Law."
28 (2) Care of the sick, with or without compensation or
29 personal profit, when done solely in connection with the
30 practice of the religious tenets of any church by adherents
20030H2078B2741 - 13 -
1 thereof.
2 (3) The practice of professional nursing by a person
3 temporarily in this Commonwealth licensed by another state,
4 territory or possession of the United States or a foreign
5 country, in compliance with an engagement made outside of this
6 Commonwealth, which engagement requires that such person
7 accompany and care for a patient while temporarily in this
8 Commonwealth: Provided, however, That said engagement shall not
9 be of more than six (6) months' duration.
10 (4) The practice of professional nursing, pursuant to a
11 temporary practice permit, by a graduate of an approved program
12 of professional nursing in Pennsylvania or any other state,
13 working under qualified supervision, during the period not to
14 exceed one (1) year between completion of his or her program and
15 notification of the results of a licensing examination taken by
16 such person, and during such additional period as the Board may
17 in each case especially permit.
18 (5) The practice of professional nursing, pursuant to a
19 temporary practice permit, by a person who holds a current
20 license or other evidence of the right to practice professional
21 nursing, as that term is defined in this [act] chapter, issued
22 by any other state, territory or possession of the United States
23 or the Dominion of Canada, during the period that an application
24 filed by such person for licensure in Pennsylvania is pending
25 before the Board, but not for a period of more than one (1) year
26 and during such additional period as the Board may in each case
27 especially permit.
28 (6) The practice of professional nursing, within the
29 definition of this [act] chapter, by any person when such person
30 is engaged in the practice of nursing as an employee of the
20030H2078B2741 - 14 -
1 United States.
2 Section [4.1] 307. Temporary Practice Permit.--In order for
3 a person to practice professional nursing during the one (1)
4 year period from completion of his or her education program or
5 the one (1) year period from the application for licensure by a
6 person who holds a current license issued by any other state,
7 territory or possession of the United States or the Dominion of
8 Canada, the Board may issue a temporary practice permit which is
9 nonrenewable and valid for a period of one (1) year and during
10 such additional period as the Board may in each case especially
11 permit, except that the temporary practice permit shall expire
12 if such person fails the licensing examination.
13 Section 11. Sections 5 and 6 of the act, amended June 29,
14 2002 (P.L.651, No.99), are amended to read:
15 Section [5] 308. Examinations and Certificates.--(a) The
16 Board shall, once every year and at such other times and under
17 such conditions as shall be provided by its regulations, examine
18 all eligible applicants for licensure; and shall, subject to the
19 provisions of section [6 of this act] 309, issue a license to
20 each person passing said examination to the satisfaction of the
21 Board.
22 (b) The Board may admit to examination any person who has
23 satisfactorily completed an approved nursing education program
24 for the preparation of registered professional nurses or an
25 approved dietetics-nutrition education program in Pennsylvania
26 or such a program in any other state, territory or possession of
27 the United States, considered by the Board to be equivalent to
28 that required in this Commonwealth at the time such program was
29 completed, and who meets the requirements of character and
30 preliminary education.
20030H2078B2741 - 15 -
1 (c) The Board may admit to examination any person who has
2 satisfactorily completed a nursing education program for the
3 preparation of registered professional nurses or an approved
4 dietetics-nutrition education program in a country or territory
5 not mentioned above who has been licensed, registered, or duly
6 recognized there as a professional nurse, dietitian-
7 nutritionist, dietitian or nutritionist provided such a program
8 is considered by the Board to be equal to that required in this
9 Commonwealth at the time such program was completed and who
10 meets the requirements of character and preliminary education.
11 (d) In establishing the education requirements for
12 admittance to the nursing licensure examination under this
13 section, the Board shall not deny access to the examination for
14 licensure as a registered nurse to a graduate of a State-
15 approved associate degree, diploma or baccalaureate degree
16 nursing program.
17 (e) A person who meets the requirements of section [6] 309,
18 and who, in addition, has been engaged in the practice of
19 dietetics-nutrition for a period of five (5) years during the
20 seven (7) years immediately preceding the effective date of this
21 subsection, or a person who provides evidence of current
22 registration as a Registered Dietitian-Nutritionist by the
23 Commission of Dietetic Registration of the American Dietetic
24 Association, shall be considered to meet the requirements of
25 this [act] chapter. This person shall be licensed without the
26 necessity of taking the examination if an application is made to
27 the Board within one (1) year of the effective date of this
28 subsection and the appropriate fee is paid.
29 Section [6] 309. Fees; Qualifications for Licensure.--(a)
30 No application for licensure as a registered nurse shall be
20030H2078B2741 - 16 -
1 considered unless accompanied by a fee determined by the Board
2 by regulation. Every applicant, to be eligible for examination
3 for licensure as a registered nurse, shall furnish evidence
4 satisfactory to the Board that he or she is of good moral
5 character, has completed work equal to a standard high school
6 course as evaluated by the Board and has satisfactorily
7 completed an approved program of professional nursing. Approved
8 programs shall include baccalaureate degree, associate degree,
9 diploma nursing programs and programs in transition from
10 approved diploma to degree granting programs when all other
11 requirements of the Board have been met.
12 (b) An applicant applying for licensure as a dietitian-
13 nutritionist shall submit a written application on forms
14 provided by the Board evidencing and insuring to the
15 satisfaction of the Board that the applicant:
16 (1) Is of good moral character.
17 (2) Has received a baccalaureate or higher degree from a
18 Board-approved, regionally accredited college or university,
19 including a major course of study in human nutrition, food and
20 nutrition, dietetics or food systems management.
21 (3) Has completed a planned continuous preprofessional
22 experience component in dietetic practice of not less than nine
23 hundred (900) hours under the supervision of a registered
24 dietitian, a dietitian-nutritionist licensed under this [act]
25 chapter or an individual with a doctoral degree conferred by a
26 regionally accredited college or university in the United States
27 with a major course of study in human nutrition, food and
28 nutrition, nutrition education, dietetics or food systems
29 management as approved by the Board.
30 (4) Has satisfactorily completed an examination approved by
20030H2078B2741 - 17 -
1 the Board. The Board shall contract with a professional testing
2 organization for the examination of qualified applicants for
3 licensure. All written, oral and practical examinations shall be
4 prepared and administered by a qualified and approved
5 professional testing organization in the manner prescribed for
6 written examinations by section 812.1 of the act of April 9,
7 1929 (P.L.177, No.175), known as "The Administrative Code of
8 1929."
9 (c) The Board shall not issue a license or certificate to an
10 applicant who has been convicted of a felonious act prohibited
11 by the act of April 14, 1972 (P.L.233, No.64), known as "The
12 Controlled Substance, Drug, Device and Cosmetic Act," or
13 convicted of a felony relating to a controlled substance in a
14 court of law of the United States or any other state, territory
15 or country unless:
16 (1) at least ten (10) years have elapsed from the date of
17 conviction;
18 (2) the applicant satisfactorily demonstrates to the Board
19 that he has made significant progress in personal rehabilitation
20 since the conviction such that licensure of the applicant should
21 not be expected to create a substantial risk of harm to the
22 health and safety of patients or the public or a substantial
23 risk of further criminal violations; and
24 (3) the applicant otherwise satisfies the qualifications
25 contained in or authorized by this [act] chapter.
26 As used in this subsection the term "convicted" shall include a
27 judgment, an admission of guilt or a plea of nolo contendere. An
28 applicant's statement on the application declaring the absence
29 of a conviction shall be deemed satisfactory evidence of the
30 absence of a conviction, unless the Board has some evidence to
20030H2078B2741 - 18 -
1 the contrary.
2 Section 12. Section 6.1 of the act, amended December 20,
3 1985 (P.L.409, No.109), is amended to read:
4 Section [6.1] 310. Education Programs, Standards and
5 Approval.--The Board shall establish standards for the operation
6 and approval of nursing education programs for the preparation
7 of registered professional nurses and for the carrying out of
8 the rights given to the Board under this [act] chapter. Programs
9 for the preparation of registered professional nurses shall be
10 established or conducted only with the approval of the Board.
11 Initial approval shall be followed by submission of an annual
12 report by the program to the Board and a site visit of the
13 program at least once every three years to assure maintenance of
14 acceptable standards.
15 Section 13. Section 6.2 of the act, amended December 15,
16 1986 (P.L.1607, No.179), is amended to read:
17 Section [6.2] 311. Education Programs, Approved Lists,
18 Distribution; Student Credits Where School Removed from List.--
19 (a) The Board shall annually prepare and make available for
20 public distribution a list of all programs approved and
21 classified by it. Any student who shall be enrolled in any
22 school which shall be removed from the approved list shall be
23 given credit toward the satisfaction of the Board's requirements
24 for examination for such of the requirements of the Board which
25 any said student shall satisfactorily complete prior to the
26 removal of said school from the approved list, and said student
27 shall upon the satisfactory completion of the remainder of said
28 requirements in any approved school be eligible for examination
29 for licensure. The Board may withhold or remove any school from
30 the approved list if the school fails to meet and maintain
20030H2078B2741 - 19 -
1 minimum standards, as established by regulation of the Board, of
2 education, curriculum, administration, qualifications of the
3 faculty, organization and function of the faculty, staff and
4 facilities.
5 (b) The Board shall not fail to approve a nursing program on
6 the grounds that such nursing program awards a diploma or
7 associate degree rather than a baccalaureate degree.
8 Section 14. Sections 7 and 8 of the act, amended June 29,
9 2002 (P.L.651, No.99), are amended to read:
10 Section [7] 312. Graduates of Schools of Other States,
11 Territories or Dominion of Canada.--(a) The Board may issue a
12 license without examination to a graduate of a school of nursing
13 or a dietetics-nutrition program who has completed a course of
14 study in nursing or dietetics-nutrition considered by the Board
15 to be equivalent to that required in this State at the time such
16 course was completed, and who is registered or licensed by
17 examination in any other state, or territory of the United
18 States or the Dominion of Canada, and who has met all the
19 foregoing requirements as to character, and preliminary
20 education.
21 (b) The Board may issue a certification to registered nurse
22 practitioners who have completed a course of study considered by
23 the Board to be equivalent to that required in this State at the
24 time such course was completed or who is licensed or certified
25 by another state, territory or possession of the United States
26 or a foreign country as deemed equivalent to Pennsylvania's
27 certification requirements in accordance with the joint rules
28 and regulations of the Boards of Nursing and Medicine.
29 Section [8] 313. Persons Entitled to Practice.--(a) The
30 Board shall issue to each person who meets the professional
20030H2078B2741 - 20 -
1 nursing licensure requirements of this [act] chapter, a
2 certificate setting forth that such person is licensed to engage
3 in the practice of professional nursing and entitled to use the
4 title "registered nurse" and the letters "R.N."
5 (b) The Board shall issue to each person who meets the
6 dietitian-nutritionist licensure requirements of this [act]
7 chapter a certificate setting forth that such person is licensed
8 as a dietitian-nutritionist and entitled to use the title
9 "licensed dietitian-nutritionist" and the letters "L.D.N." A
10 record of all persons licensed as dietitian-nutritionists in
11 this Commonwealth shall be kept in the office of the Board and
12 shall be open to public inspection and copying upon payment of a
13 nominal fee for copying the record.
14 Section 14.1. Sections 8.1, 8.2, 8.3 and 8.4 of the act,
15 added December 9, 2002 (P.L.1567, No.206), are amended to read:
16 Section [8.1] 313.1. Certified Registered Nurse
17 Practitioners; Qualifications.--(a) The board may certify a
18 licensed registered nurse as a certified registered nurse
19 practitioner in a particular clinical specialty area if the
20 nurse satisfies the requirements established by this [act]
21 chapter and regulations promulgated by the board. Certification
22 of a nurse by the board shall expire on the same date as the
23 license of that nurse expires.
24 (b) (1) Beginning on the effective date of this section, a
25 nurse shall not qualify for initial certification by the board
26 under subsection (a) unless the nurse:
27 (i) is a graduate of an accredited, board-approved master's
28 or post-master's nurse practitioner program; and
29 (ii) holds certification as a certified registered nurse
30 practitioner from a board-recognized national certification
20030H2078B2741 - 21 -
1 organization which required passing of a national certifying
2 examination in the particular clinical specialty area in which
3 the nurse is seeking certification by the board.
4 (2) This subsection shall not apply to a nurse who:
5 (i) holds certification from the board as a certified
6 registered nurse practitioner on the effective date of this
7 subsection February 7, 2003; or
8 (ii) would otherwise qualify for certification as a
9 certified registered nurse practitioner under section [7(b)]
10 312(b).
11 (3) In order to provide a transition period for persons who
12 completed or were enrolled in an approved educational program on
13 the effective date of this section and to permit those persons
14 to apply for certification under the rules in existence
15 immediately prior to the effective date of this section, the
16 board shall issue initial certification to any person who,
17 within two (2) years of the effective date of this section:
18 (i) submits evidence of having completed or been enrolled in
19 an approved educational program on the effective date of this
20 section; and
21 (ii) fulfills all administrative requirements of the board
22 and possesses all of the other qualifications for certification
23 in effect immediately prior to the effective date of this
24 section.
25 (c) As a condition for biennial renewal of certification by
26 the board, a certified registered nurse practitioner must, in
27 the two (2) years prior to renewal, complete at least thirty
28 (30) hours of continuing education approved by the board. In the
29 case of a certified registered nurse practitioner who is
30 prescribing medical therapeutic or corrective measures pursuant
20030H2078B2741 - 22 -
1 to section [8.3] 313.3, that continuing education must include
2 at least sixteen (16) hours in pharmacology in that two-year
3 period.
4 Section [8.2] 313.2. Scope of Practice for Certified
5 Registered Nurse Practitioners.--(a) A certified registered
6 nurse practitioner while functioning in the expanded role as a
7 professional nurse shall practice within the scope of practice
8 of the particular clinical specialty area in which the nurse is
9 certified by the board.
10 (b) A certified registered nurse practitioner may perform
11 acts of medical diagnosis in collaboration with a physician and
12 in accordance with regulations promulgated by the board.
13 (c) A certified registered nurse practitioner may prescribe
14 medical therapeutic or corrective measures if the nurse is
15 acting in accordance with the provisions of section [8.3] 313.3.
16 (d) Nothing in this section shall be construed to limit or
17 prohibit a certified registered nurse practitioner from engaging
18 in those activities which normally constitute the practice of
19 nursing [as defined in section 2].
20 Section [8.3] 313.3. Prescriptive Authority for Certified
21 Registered Nurse Practitioners.--(a) A certified registered
22 nurse practitioner may prescribe medical therapeutic or
23 corrective measures if the nurse:
24 (1) has successfully completed at least forty-five (45)
25 hours of coursework specific to advanced pharmacology at a level
26 above that required by a professional nursing education program;
27 (2) is acting in collaboration with a physician as set forth
28 in a written agreement which shall, at a minimum, identify the
29 following:
30 (i) the area of practice in which the nurse is certified;
20030H2078B2741 - 23 -
1 (ii) the categories of drugs from which the nurse may
2 prescribe or dispense; and
3 (iii) the circumstances and how often the collaborating
4 physician will personally see the patient; and
5 (3) is acting in accordance with regulations promulgated by
6 the board.
7 (b) A certified registered nurse practitioner who satisfies
8 the requirements of subsection (a) may prescribe and dispense
9 those categories of drugs that certified registered nurse
10 practitioners were authorized to prescribe and dispense by board
11 regulations in effect on the effective date of this section,
12 subject to the restrictions on certain drug categories imposed
13 by those regulations. The board shall add to or delete from the
14 categories of authorized drugs in accordance with the provisions
15 of section [8.4] 313.4.
16 Section [8.4] 313.4. Drug Review Committee.--(a) The Drug
17 Review Committee is hereby established and shall consist of
18 seven members as follows:
19 (1) The Secretary of Health or, at the discretion of the
20 Secretary of Health, the Physician General as his or her
21 designee, who shall act as chairman.
22 (2) Two certified registered nurse practitioners who are
23 actively engaged in clinical practice, appointed to three-year
24 terms by the Secretary of Health.
25 (3) Two licensed physicians who are actively engaged in
26 clinical practice, appointed to three-year terms by the
27 Secretary of Health, at least one of whom shall, at the time of
28 appointment, be collaborating with one or more certified
29 registered nurse practitioners in accordance with section
30 [8.3(a)(2)] 313.3(a)(2).
20030H2078B2741 - 24 -
1 (4) Two licensed pharmacists who are actively engaged in the
2 practice of pharmacy, appointed to three-year terms by the
3 Secretary of Health.
4 (b) (1) The board shall submit to the Drug Review Committee
5 any proposed change to the categories of drugs that certified
6 registered nurse practitioners were authorized to prescribe
7 pursuant to board regulations in effect on the effective date of
8 this section. The board shall not change, by addition or
9 deletion, the categories of authorized drugs without prior
10 approval of the Drug Review Committee.
11 (2) Within sixty (60) days of a submission by the board
12 under paragraph (1), a majority of the Drug Review Committee
13 shall vote to approve or disapprove the proposed change.
14 (3) If a majority of the Drug Review Committee fails to vote
15 to approve or disapprove the proposed change within sixty (60)
16 days of receipt of a submission by the board under paragraph
17 (1), the Drug Review Committee shall be deemed to have approved
18 the proposed change.
19 Section 14.2. Sections 11 and 11.1 of the act, amended June
20 29, 2002 (P.L.651, No.99), are amended to read:
21 Section [11] 314. Licenses; Duration; Renewal Fee; Inactive
22 Status.--(a) Licenses issued pursuant to this [act] chapter
23 shall expire on the thirty-first day of October of each
24 biennium, or on such other biennial expiration date as may be
25 established by regulation of the Board. Application for renewal
26 of a license shall biennially be forwarded to each registrant
27 holding a current license prior to the expiration date of the
28 current renewal biennium. The application form may be completed
29 and returned to the Board, accompanied by the required fee as
30 determined by the Board by regulation; upon approval of each
20030H2078B2741 - 25 -
1 application, the applicant shall receive a renewal of license.
2 (b) Any registrant licensed under this [act] chapter may
3 request an application for inactive status. The application form
4 may be completed and returned to the Board. Upon receipt of each
5 application, the applicant shall be maintained on inactive
6 status without fee and shall be entitled to apply at any time.
7 Any person who requests an active status license who has been on
8 inactive status for a period of five (5) consecutive years shall
9 prior to receiving an active license satisfy the requirements of
10 the Board's regulations for ensuring continued competence and
11 remit the required fee. A person shall not be denied active
12 status as a result of any increased educational requirements for
13 licensure since the time he or she received his or her original
14 license.
15 (c) A dietetics-nutrition license issued under this [act]
16 chapter shall not be renewed unless the licensee applying for
17 renewal submits proof to the Board that, during the two (2)
18 calendar years immediately preceding the application for
19 renewal, the licensee has satisfactorily completed a minimum of
20 thirty (30) hours of continuing dietetic-nutrition education
21 approved by the Board by regulation.
22 Section [11.1] 315. Reporting of Multiple Licensure.--Any
23 licensed professional nurse or dietitian-nutritionist of this
24 Commonwealth who is also licensed to practice nursing or
25 dietetics-nutrition in any other state, territory, possession or
26 country shall report this information to the Board on the
27 biennial registration application. Any disciplinary action taken
28 in other states shall be reported to the Board on the biennial
29 registration application or within ninety (90) days of final
30 disposition, whichever is sooner. Multiple licensure shall be
20030H2078B2741 - 26 -
1 noted by the Board on the licensee's record, and such state,
2 territory, possession or country shall be notified by the Board
3 of any disciplinary actions taken against said licensee in this
4 Commonwealth.
5 Section 15. Sections 11.2 and 11.3 of the act, added
6 December 20, 1985 (P.L.409, No.109), are amended to read:
7 Section [11.2] 316. Setting of Fees and Disposition of Fees,
8 Fines and Civil Penalties.--(a) All fees required under this
9 [act] chapter shall be fixed by the Board by regulation and
10 shall be subject to the act of June 25, 1982 (P.L.633, No.181),
11 known as the "Regulatory Review Act." If the revenues raised by
12 the fees, fines and civil penalties imposed under this [act]
13 chapter are not sufficient to meet expenditures over a two-year
14 period, the Board shall increase those fees by regulation so
15 that projected revenues will meet or exceed projected
16 expenditures.
17 (b) If the Bureau of Professional and Occupational Affairs
18 determines that the fees established by the Board under
19 subsection (a) are inadequate to meet the minimum enforcement
20 efforts required by this [act] chapter, then the bureau, after
21 consultation with the Board and subject to the "Regulatory
22 Review Act," shall increase the fees by regulation in an amount
23 that adequate revenues are raised to meet the required
24 enforcement effort.
25 (c) All fees, fines and civil penalties imposed in
26 accordance with this [act] chapter shall be paid into the
27 Professional Licensure Augmentation Account established pursuant
28 to, and for use in accordance with, the act of July 1, 1978
29 (P.L.700, No.124), known as the "Bureau of Professional and
30 Occupational Affairs Fee Act."
20030H2078B2741 - 27 -
1 (d) The Board may charge a fee, as set by the Board by
2 regulation, for all examinations, registrations, renewals,
3 certifications, licenses or applications permitted by this [act]
4 chapter or regulations thereunder.
5 Section [11.3] 317. Reports of the Board.--(a) The Board
6 shall submit annually to the Department of State an estimate of
7 the financial requirements of the Board for its administrative,
8 investigative, legal and miscellaneous expenses.
9 (b) The Board shall submit annually to the House and Senate
10 Appropriations Committees, fifteen (15) days after the Governor
11 has submitted his budget to the General Assembly, a copy of the
12 budget request for the upcoming fiscal year which the Board
13 previously submitted to the department.
14 (c) The Board shall submit annually a report, to the
15 Professional Licensure Committee of the House of Representatives
16 and to the Consumer Protection and Professional Licensure
17 Committee of the Senate, containing a description of the types
18 of complaints received, status of cases, Board action which has
19 been taken and the length of time from the initial complaint to
20 final Board resolution.
21 Section 16. Sections 13, 14 and 14.1 of the act, amended
22 June 29, 2002 (P.L.651, No.99), are amended to read:
23 Section [13] 318. Punishment for Violations.--(a) Any
24 person, or the responsible officers or employees of any
25 corporation, copartnership, institution or association violating
26 any of the provisions of this [act] chapter, or any rule or
27 regulation of the Board, commits a misdemeanor and, upon
28 conviction thereof, shall be sentenced to pay a fine of not more
29 than one thousand dollars ($1,000), or undergo imprisonment for
30 not more than six (6) months for the first violation. On the
20030H2078B2741 - 28 -
1 second and each subsequent conviction, he shall be sentenced to
2 pay a fine of not more than two thousand dollars ($2,000), or
3 undergo imprisonment for not less than six (6) months or more
4 than one (1) year in jail, or both.
5 (b) In addition to any other civil remedy or criminal
6 penalty provided for in this [act] chapter, the Board, by a vote
7 of the majority of the maximum number of the authorized
8 membership of the Board as provided by law or by a vote of the
9 majority of the duly qualified and confirmed membership or a
10 minimum of five (5) members, whichever is greater, may levy a
11 civil penalty of up to one thousand dollars ($1,000) on any
12 current licensee who violates any provision of this [act]
13 chapter or on any person who practices nursing or holds himself
14 or herself forth as a licensed dietitian-nutritionist without
15 being properly licensed to do so under this [act] chapter or on
16 the responsible officers or employes of any corporation,
17 copartnership, institution or association violating any of the
18 provisions of this [act] chapter. The Board shall levy this
19 penalty only after affording the accused party the opportunity
20 for a hearing, as provided in Title 2 of the Pennsylvania
21 Consolidated Statutes (relating to administrative law and
22 procedure).
23 Section [14] 319. Refusal, Suspension or Revocation of
24 Licenses.--(a) The Board may refuse, suspend or revoke any
25 license in any case where the Board shall find that--
26 (1) The licensee is on repeated occasions negligent or
27 incompetent in the practice of professional nursing or
28 dietetics-nutrition.
29 (2) The licensee is unable to practice professional nursing
30 with reasonable skill and safety to patients by reason of mental
20030H2078B2741 - 29 -
1 or physical illness or condition or physiological or
2 psychological dependence upon alcohol, hallucinogenic or
3 narcotic drugs or other drugs which tend to impair judgment or
4 coordination, so long as such dependence shall continue. In
5 enforcing this clause (2), the Board shall, upon probable cause,
6 have authority to compel a licensee to submit to a mental or
7 physical examination as designated by it. After notice, hearing,
8 adjudication and appeal as provided for in section [15] 321,
9 failure of a licensee to submit to such examination when
10 directed shall constitute an admission of the allegations
11 against him or her unless failure is due to circumstances beyond
12 his or her control, consequent upon which a default and final
13 order may be entered without the taking of testimony or
14 presentation of evidence. A licensee affected under this
15 paragraph shall at reasonable intervals be afforded an
16 opportunity to demonstrate that he or she can resume a competent
17 practice of professional nursing with reasonable skill and
18 safety to patients.
19 (2.1) The licensee is unable to practice dietetics-nutrition
20 with reasonable skill and safety to individuals or groups by
21 reason of mental or physical illness or condition or
22 physiological or psychological dependence upon alcohol,
23 hallucinogenic or narcotic drugs or other drugs which tend to
24 impair judgment or coordination, so long as such dependence
25 shall continue. In enforcing this clause (2.1), the Board shall,
26 upon probable cause, have authority to compel a licensee to
27 submit to a mental or physical examination as designated by it.
28 After notice, hearing, adjudication and appeal as provided for
29 in section [15] 321, failure of a licensee to submit to such
30 examination when directed shall constitute an admission of the
20030H2078B2741 - 30 -
1 allegations against him or her unless failure is due to
2 circumstances beyond his or her control, consequent upon which a
3 default and final order may be entered without the taking of
4 testimony or presentation of evidence. A licensee affected under
5 this paragraph shall at reasonable intervals be afforded an
6 opportunity to demonstrate that he or she can resume a competent
7 practice of dietetics-nutrition with reasonable skill and safety
8 to individuals or groups.
9 (3) The licensee has wilfully or repeatedly violated any of
10 the provisions of this [act] chapter or of the regulations of
11 the Board.
12 (4) The licensee has committed fraud or deceit in:
13 (i) the practice of nursing, or in securing his or her
14 admission to such practice or nursing school; or
15 (ii) the practice of dietetics-nutrition, or in securing his
16 or her license as a dietitian-nutritionist.
17 (5) The licensee has been convicted, or has pleaded guilty,
18 or entered a plea of nolo contendere, or has been found guilty
19 by a judge or jury, of a felony or a crime of moral turpitude,
20 or has received probation without verdict, disposition in lieu
21 of trial or an Accelerated Rehabilitative Disposition in the
22 disposition of felony charges, in the courts of this
23 Commonwealth, the United States or any other state, territory,
24 possession or country.
25 (6) The licensee has his or her license suspended or revoked
26 or has received other disciplinary action by the proper
27 licensing authority in another state, territory, possession or
28 country.
29 (7) The licensee has acted in such a manner as to present an
30 immediate and clear danger to the public health or safety.
20030H2078B2741 - 31 -
1 (8) The licensee possessed, used, acquired or distributed a
2 controlled substance or caution legend drug for other than an
3 acceptable medical purpose.
4 (9) The licensee has been guilty of immoral or
5 unprofessional conduct. Unprofessional conduct shall include
6 departure from or failing to conform to an ethical or quality
7 standard of the profession. The ethical and quality standards of
8 the profession are those embraced by the professional community
9 in this Commonwealth. In proceedings based on this clause,
10 actual injury to a patient or individual or group need not be
11 established.
12 (b) When the Board finds that the license of any nurse or
13 dietitian-nutritionist may be refused, revoked or suspended
14 under the terms of subsection (a), the Board may:
15 (1) Deny the application for a license.
16 (2) Administer a public reprimand.
17 (3) Revoke, suspend, limit or otherwise restrict a license
18 as determined by the Board.
19 (4) Require a licensee to submit to the care, counseling or
20 treatment of a physician or a psychologist designated by the
21 Board.
22 (5) Suspend enforcement of its finding thereof and place a
23 licensee on probation with the right to vacate the probationary
24 order for noncompliance.
25 (6) Restore or reissue, in its discretion, a suspended
26 license to practice professional or practical nursing or
27 dietetics-nutrition and impose any disciplinary or corrective
28 measure which it might originally have imposed.
29 Section [14.1] 320. Impaired Professionals Program.--(a)
30 The Board, with the approval of the Commissioner of Professional
20030H2078B2741 - 32 -
1 and Occupational Affairs, shall appoint and fix the compensation
2 of a professional consultant who is a licensee of the Board with
3 education and experience in the identification, treatment and
4 rehabilitation of persons with physical or mental impairments.
5 Such consultant shall be accountable to the Board and shall act
6 as a liaison between the Board and treatment programs, such as
7 alcohol and drug treatment programs licensed by the Department
8 of Health, psychological counseling and impaired professionals
9 support groups approved by the Board and which provide services
10 to licensees under this [act] chapter.
11 (b) The Board may defer and ultimately dismiss any of the
12 types of corrective action set forth in this [act] chapter for
13 an impaired professional so long as the licensee is progressing
14 satisfactorily in an approved treatment program, provided that
15 the provisions of this subsection shall not apply to a licensee
16 who has been convicted of, pleaded guilty to or entered a plea
17 of nolo contendere to a felonious act prohibited by the act of
18 April 14, 1972 (P.L.233, No.64), known as "The Controlled
19 Substance, Drug, Device and Cosmetic Act," or the conviction of
20 a felony relating to a controlled substance in a court of law of
21 the United States or any other state, territory or country. An
22 approved program provider shall, upon request, disclose to the
23 consultant such information in its possession regarding an
24 impaired professional in treatment which the program provider is
25 not prohibited from disclosing by an act of this Commonwealth,
26 another state or the United States. Such requirement of
27 disclosure by an approved program provider shall apply in the
28 case of impaired professionals who enter an agreement in
29 accordance with this section, impaired professionals who are the
30 subject of a Board investigation or disciplinary proceeding and
20030H2078B2741 - 33 -
1 impaired professionals who voluntarily enter a treatment program
2 other than under the provisions of this section but who fail to
3 complete the program successfully or to adhere to an after-care
4 plan developed by the program provider.
5 (c) An impaired professional who enrolls in an approved
6 treatment program shall enter into an agreement with the Board
7 under which the professional's license shall be suspended or
8 revoked but enforcement of that suspension or revocation may be
9 stayed for the length of time the professional remains in the
10 program and makes satisfactory progress, complies with the terms
11 of the agreement, and adheres to any limitations on his practice
12 imposed by the Board to protect the public. Failure to enter
13 into such an agreement shall disqualify the professional from
14 the impaired professional program and shall activate an
15 immediate investigation and disciplinary proceeding by the
16 Board.
17 (d) If, in the opinion of such consultant after consultation
18 with the provider, an impaired professional who is enrolled in
19 an approved treatment program has not progressed satisfactorily,
20 the consultant shall disclose to the Board all information in
21 his or her possession regarding such professional, and the Board
22 shall institute proceedings to determine if the stay of the
23 enforcement of the suspension or revocation of the impaired
24 professional's license shall be vacated.
25 (e) An approved program provider who makes a disclosure
26 pursuant to this section shall not be subject to civil liability
27 for such disclosure or its consequences.
28 (f) Any hospital or health care facility, peer or colleague
29 who has substantial evidence that a professional has an active
30 addictive disease for which the professional is not receiving
20030H2078B2741 - 34 -
1 treatment, is diverting a controlled substance or is mentally or
2 physically incompetent to carry out the duties of his license
3 shall make or cause to be made a report to the Board: Provided,
4 That any person or facility who acts in a treatment capacity to
5 impaired professionals in an approved treatment program is
6 exempt from the mandatory reporting requirement of this
7 subsection. Any person or facility who reports pursuant to this
8 section in good faith and without malice shall be immune from
9 any civil or criminal liability arising from such report.
10 Failure to provide such report within a reasonable time from
11 receipt of knowledge of impairment shall subject the person or
12 facility to a fine not to exceed one thousand dollars ($1,000).
13 The Board shall levy this penalty only after affording the
14 accused party the opportunity for a hearing, as provided in
15 Title 2 of the Pennsylvania Consolidated Statutes (relating to
16 administrative law and procedure).
17 Section 17. Sections 15 and 15.1 of the act, amended or
18 added December 20, 1985 (P.L.409, No.109), are amended to read:
19 Section [15] 321. Suspensions and Revocations, How Made,
20 Notice, Hearing, Adjudication and Appeal; Reissuance of
21 License.--All suspensions and revocations shall be made only in
22 accordance with the regulations of the Board, and only by
23 majority vote of the members of the Board after a full and fair
24 hearing before the Board. All actions of the Board shall be
25 taken subject to the right of notice, hearing and adjudication,
26 and the right of appeal therefrom, in accordance with the
27 provisions in Title 2 of the Pennsylvania Consolidated Statutes
28 (relating to administrative law and procedure), or any amendment
29 or reenactment thereof, relating to adjudication procedure. The
30 Board, by majority action and in accordance with its
20030H2078B2741 - 35 -
1 regulations, may reissue any license which has been suspended.
2 If a license has been revoked, the Board can reissue a license
3 only in accordance with section [15.2] 323.
4 Section [15.1] 322. Temporary and Automatic Suspensions.--
5 (a) A license issued under this [act] chapter may be
6 temporarily suspended under circumstances determined by the
7 Board to be an immediate and clear danger to public health and
8 safety. The Board shall issue an order to that effect without a
9 hearing, but upon due notice, to the licensee concerned at his
10 or her last known address, which shall include a written
11 statement of all allegations against the licensee. The
12 provisions of section [15] 321 shall not apply to temporary
13 suspension. The Board shall thereupon commence formal action to
14 suspend, revoke or restrict the license of the person concerned
15 as otherwise provided for in this [act] chapter. All actions
16 shall be taken promptly and without delay. Within thirty (30)
17 days following the issuance of an order temporarily suspending a
18 license, the Board shall conduct or cause to be conducted a
19 preliminary hearing to determine that there is a prima facie
20 case supporting the suspension. The licensee whose license has
21 been temporarily suspended may be present at the preliminary
22 hearing and may be represented by counsel, cross-examine
23 witnesses, inspect physical evidence, call witnesses, offer
24 evidence and testimony and make a record of the proceedings. If
25 it is determined that there is not a prima facie case, the
26 suspended license shall be immediately restored. The temporary
27 suspension shall remain in effect until vacated by the Board,
28 but in no event longer than one hundred eighty (180) days.
29 (b) A license issued under this [act] chapter shall
30 automatically be suspended upon the legal commitment to an
20030H2078B2741 - 36 -
1 institution because of mental incompetency from any cause upon
2 filing with the Board a certified copy of such commitment,
3 conviction of a felony under the act of April 14, 1972 (P.L.233,
4 No.64), known as "The Controlled Substance, Drug, Device and
5 Cosmetic Act," or conviction of an offense under the laws of
6 another jurisdiction, which, if committed in Pennsylvania, would
7 be a felony under "The Controlled Substance, Drug, Device and
8 Cosmetic Act." As used in this section the term "conviction"
9 shall include a judgment, an admission of guilt or a plea of
10 nolo contendere. Automatic suspension under this subsection
11 shall not be stayed pending any appeal of a conviction.
12 Restoration of such license shall be made as hereinafter
13 provided in the case of revocation or suspension of such
14 license.
15 Section 18. Section 15.2 of the act, amended June 29, 2002
16 (P.L.651, No.99), is amended to read:
17 Section [15.2] 323. Reinstatement of License.--Unless
18 ordered to do so by Commonwealth Court or an appeal therefrom,
19 the Board shall not reinstate the license of a person to
20 practice nursing or dietetics-nutrition which has been revoked.
21 Any person whose license has been revoked may reapply for a
22 license, after a period of at least five (5) years, but must
23 meet all of the licensing qualifications of this [act] chapter
24 for the license applied for, to include the examination
25 requirement, if he or she desires to practice at any time after
26 such revocation.
27 Section 19. Section 15.3 of the act, added December 20, 1985
28 (P.L.409, No.109), is amended to read:
29 Section [15.3] 324. Surrender of Suspended or Revoked
30 License.--The Board shall require a person whose license has
20030H2078B2741 - 37 -
1 been suspended or revoked to return the license in such manner
2 as the Board directs. Failure to do so, and upon conviction
3 thereof, shall be a misdemeanor of the third degree.
4 Section 20. Section 15.4 of the act, amended June 29, 2002
5 (P.L.651, No.99), is amended to read:
6 Section [15.4] 325. Injunction or Other Process.--It shall
7 be unlawful for any person to practice or attempt to offer to
8 practice nursing or hold himself or herself forth as a licensed
9 dietitian-nutritionist[, as defined in this act,] without having
10 at the time of so doing a valid, unexpired, unrevoked and
11 unsuspended license issued under this act. The unlawful practice
12 of nursing as defined in this [act] chapter may be enjoined by
13 the courts on petition of the Board or the Commissioner of
14 Professional and Occupational Affairs. In any such proceeding,
15 it shall not be necessary to show that any person is
16 individually injured by the actions complained of. If it is
17 determined that the respondent has engaged in the unlawful
18 practice of nursing, the court shall enjoin him or her from so
19 practicing unless and until he or she has been duly licensed.
20 Procedure in such cases shall be the same as in any other
21 injunction suit. The remedy by injunction hereby given is in
22 addition to any other civil or criminal prosecution and
23 punishment.
24 Section 21. Section 15.5 of the act, added December 20, 1985
25 (P.L.409, No.109), is amended to read:
26 Section [15.5] 326. Subpoenas; Oaths.--(a) The Board shall
27 have the authority to issue subpoenas, upon application of an
28 attorney responsible for representing the Commonwealth in
29 disciplinary matters before the Board, for the purpose of
30 investigating alleged violations of the disciplinary provisions
20030H2078B2741 - 38 -
1 administered by the Board. The Board shall have the power to
2 subpoena witnesses, to administer oaths, to examine witnesses
3 and to take such testimony or compel the production of such
4 books, records, papers and documents as it may deem necessary or
5 proper in, and pertinent to, any proceeding, investigation or
6 hearing held or had by it. Medical records may not be subpoenaed
7 without consent of the patient or without order of a court of
8 competent jurisdiction on a showing that the records are
9 reasonably necessary for the conduct of the investigation. The
10 court may impose such limitations on the scope of the subpoena
11 as are necessary to prevent unnecessary intrusion into patient
12 confidential information. The Board is authorized to apply to
13 Commonwealth Court to enforce its subpoenas.
14 (b) An attorney responsible for representing the
15 Commonwealth in disciplinary matters before the Board shall
16 notify the Board immediately upon receiving notification of an
17 alleged violation of this [act] chapter. The Board shall
18 maintain current records of all reported alleged violations and
19 periodically review the records for the purpose of determining
20 that each alleged violation has been resolved in a timely
21 manner.
22 Section 22. Sections 16 and 17 of the act are amended to
23 read:
24 [Section 16. The following acts or parts of acts and their
25 amendments are hereby repealed as respectively indicated:
26 The act, approved the first day of May, one thousand nine
27 hundred nine (Pamphlet Laws 321), entitled "An act to provide
28 for State registration of nurses, to establish a State Board of
29 Examiners in connection therewith, and to provide penalties for
30 the violation of certain provisions regarding such
20030H2078B2741 - 39 -
1 registration," absolutely.
2 The act, approved the thirteenth day of May, one thousand
3 nine hundred twenty-seven (Pamphlet Laws 988), entitled "An act
4 providing for and regulating the State registration of nurses
5 and licensed attendants, the annual recording of registration
6 certificates; and regulating the profession of nursing; and
7 repealing certain existing laws," except in so far as it applies
8 to licensed attendants.
9 All other acts and parts of acts are hereby repealed in so
10 far as they are inconsistent with the provisions of this act.
11 Section 17. The provisions of this act shall become
12 effective immediately upon final enactment; but section three
13 shall not become operative until the first day of November, one
14 thousand nine hundred fifty-two.]
15 Section 23. The act is amended by adding a chapter to read:
16 CHAPTER 5
17 MASSAGE THERAPISTS
18 Section 501. Scope.
19 This chapter relates to massage therapists.
20 Section 502. Declaration of policy.
21 The General Assembly recognizes that the practice of massage
22 may cause public safety issues if not regulated. In the interest
23 of public health, safety and welfare, it is necessary to
24 regulate the practice of massage. Massage therapy is
25 therapeutic, and regulations are necessary to protect the public
26 from unqualified practitioners. Consumer protection with respect
27 to both health and economic matters will be afforded the public
28 through legal remedies provided for in this chapter.
29 Section 503. Definitions.
30 The following words and phrases when used in this chapter
20030H2078B2741 - 40 -
1 shall have the meanings given to them in this section unless the
2 context clearly indicates otherwise:
3 "Commissioner." The Commissioner of the Bureau of
4 Professional and Occupational Affairs.
5 "Massage or massage therapy." The application of a system of
6 structured touch, pressure, movement and holding to the soft
7 tissue of the human body in which the primary intent is to
8 enhance or restore health and well-being of the client. The term
9 includes the external application of water, heat, cold,
10 lubricants or other topical preparations and electro-mechanical
11 devices which mimic or enhance the actions of the hands. The
12 term does not include the diagnosis of illness or disease,
13 medical procedures, chiropractic adjustment, electrical
14 stimulation, ultrasound or prescription of medicines, for which
15 a license to practice medicine, chiropractic, physical therapy,
16 occupational therapy, podiatry or other practice of the healing
17 arts is required.
18 "Massage therapist." A person licensed under this act to
19 administer massage or massage therapy.
20 "Person." Any individual, organization, association,
21 partnership, company, trust or corporate body, except that any
22 reference in this chapter to a licensed person shall mean a
23 natural individual person.
24 "Reflexology." The physical act of using thumbs, fingers and
25 hand techniques to apply specific pressure on the reflex area in
26 the feet, hands or ears of the client.
27 Section 504. License required; qualifications.
28 (a) Requirement.--An individual may not practice massage
29 therapy unless the individual is licensed under this chapter. A
30 license under this chapter is not transferable. A person may not
20030H2078B2741 - 41 -
1 sell, fraudulently obtain or fraudulently furnish a license
2 under this chapter or aid or abet such sale, obtaining or
3 furnishing.
4 (b) Exemptions.--Nothing in this chapter shall be construed
5 as preventing or restricting:
6 (1) The practice of a profession by persons who are
7 licensed, certified or registered under other laws of this
8 Commonwealth and who are performing services within their
9 authorized scope of practice.
10 (2) The practice of massage therapy by a person employed
11 by the Federal Government while the person is engaged in the
12 performance of duties prescribed by the laws and regulations
13 of the United States.
14 (3) The practice of massage therapy by persons duly
15 licensed, registered or certified in another state,
16 territory, the District of Columbia or a foreign country when
17 incidentally called into this Commonwealth to teach a course
18 related to massage and bodywork therapy or to consult with a
19 person licensed under this chapter.
20 (4) Students enrolled in a board-approved school while
21 completing a clinical requirement for graduation that shall
22 be performed under the supervision of a person licensed under
23 this chapter.
24 (5) The practice by a person while performing
25 reflexology if the person does not hold oneself out to be a
26 massage therapist or to practice massage therapy.
27 (6) The practice of an individual who uses touch, words
28 and directed movement to deepen awareness of existing
29 patterns of movement in the body as well as to suggest new
30 possibilities of movement while engaged within the scope of
20030H2078B2741 - 42 -
1 practice of a profession with established standards and
2 ethics, provided that the services are not designated or
3 implied to be massage or massage therapy.
4 (7) The practice of an individual who uses touch to
5 affect the energy systems, accupoints or Qi meridians
6 (channels of energy) of the human body while engaged within
7 the scope of practice of a profession with established
8 standards and ethics, unless the services are designated or
9 implied to be massage or massage therapy.
10 (8) Individuals incidentally in this Commonwealth to
11 provide service as part of an emergency response team working
12 in conjunction with disaster relief officials.
13 (9) The practice of event massage, such as an olympics,
14 a convention or public participation in a sports event.
15 (c) Title and utilization.--An individual who holds a
16 license under this chapter has the right to use the title
17 "Massage Therapist" and the abbreviation "M.T." An individual
18 who does not hold a license under this chapter may not use the
19 title "Massage Therapist" or the abbreviation "M.T." A person
20 commits a violation of this section if a person holds oneself
21 out to others in any manner, including advertising, as a massage
22 therapist and adopts or uses any title or description, including
23 massage therapist, massage practitioner, masseur, masseuse,
24 myotherapist, or any derivative of those terms and their related
25 abbreviations, which implies directly or indirectly that
26 therapeutic massage services are being provided, including the
27 billing of massage therapy services unless those services are
28 provided by a licensed massage therapist in accordance with this
29 chapter.
30 (d) Prohibited use.--Except as set forth in subsection
20030H2078B2741 - 43 -
1 (b)(2), it shall be a violation of this chapter for any business
2 entity to utilize in connection with a business name or activity
3 the words: massage, massage therapist, massage practitioner,
4 masseur, masseuse or myotherapist, or any derivative of those
5 terms and their related abbreviations, which implies directly or
6 indirectly that massage therapy services are being provided,
7 including the billing of massage therapy services unless those
8 services are provided by a licensed massage therapist in
9 accordance with this chapter.
10 Section 505. Requirements for licensure.
11 (a) General rule.--Except as otherwise provided, to be
12 eligible for licensure by the board as a massage therapist, an
13 applicant shall pay a fee as established by the board and must
14 comply with all of the following:
15 (1) Be of good moral character to the satisfaction of
16 the board.
17 (2) Have a high school diploma or its equivalent.
18 (3) Not be addicted to the habitual use of alcohol,
19 narcotics or other habit-forming drugs.
20 (4) Except as set forth in subsection (d), not have been
21 convicted of a felony.
22 (5) Satisfactorily complete massage studies with a
23 minimum of 600 hours of in-class and postsecondary course
24 instruction approved by the State Board of Private Licensed
25 Schools.
26 (6) Pass an examination prepared and administered by a
27 qualified professional testing organization under contract
28 with the Bureau of Professional and Occupational Affairs and
29 approved by the board. All examinations shall be prepared and
30 administered by qualified professional testing organizations
20030H2078B2741 - 44 -
1 under contract with the Bureau of Professional and
2 Occupational Affairs and approved by the board in accordance
3 with section 812.1 of the act of April 9, 1929 (P.L.177,
4 No.175), known as The Administrative Code of 1929. No board
5 member may have a financial interest in a professional
6 testing organization.
7 (b) Protection for currently active practitioners.--All
8 initial applicants who are professional practitioners of massage
9 who meet the qualifications described in this chapter upon the
10 effective date of this section shall be licensed by the board as
11 soon as possible, subject to the following:
12 (1) Except as provided in paragraph (2), active
13 practitioners in the profession of massage therapy who have
14 been in active, continuous practice for two or more years
15 immediately preceding the effective date of this section and
16 have 150 hours of instruction in massage and related subjects
17 approved by the board.
18 (2) The hours of instruction required by paragraph (1)
19 shall be waived in the case of an active practitioner who:
20 (i) has passed an examination administered by a
21 certifying agency approved by the National Commission of
22 Certifying Agencies which relates to the field of massage
23 therapy and is in good standing with the certifying
24 agency; or
25 (ii) has passed an examination approved by the
26 board.
27 (c) Temporary license.--Applicants shall be issued temporary
28 licenses during the two-year period while they are fulfilling
29 the hours of instruction required by subsection (b)(1). A
30 temporary license shall expire at the end of two years or sooner
20030H2078B2741 - 45 -
1 if the temporary licensee establishes, to the satisfaction of
2 the board, that the licensee has met the educational
3 requirements in this chapter and has received a regular license
4 from the board. The temporary license shall not be renewable and
5 shall be at the same fee as a regular license.
6 (d) Prohibition.--Any person licensed by this chapter must
7 not have been convicted of a felonious act prohibited by the act
8 of April 14, 1972 (P.L.233, No.64), known as The Controlled
9 Substance, Drug, Device and Cosmetic Act, or of an offense under
10 the laws of another jurisdiction which if committed in this
11 Commonwealth would be a felony under The Controlled Substance,
12 Drug, Device and Cosmetic Act, unless the applicant satisfies
13 all of the following criteria:
14 (1) At least ten years have elapsed from the date of
15 conviction.
16 (2) Satisfactorily demonstrates to the board that the
17 applicant has made significant progress in personal
18 rehabilitation since the conviction such that licensure of
19 the applicant should not be expected to create a substantial
20 risk of harm to the health and safety of his clients or the
21 public or a substantial risk of further criminal violations.
22 Section 506. Application for license and fees.
23 (a) Fees, forms.--The board shall, by regulation, set the
24 fees required for examinations and for all forms of licensure
25 provided for in this chapter.
26 (b) Insufficient revenues.--If the revenues raised by fees,
27 fines and civil penalties imposed pursuant to this chapter are
28 not sufficient to meet expenditures over a two-year period, the
29 board shall increase those fees by regulation so that projected
30 revenues will meet or exceed projected expenditures.
20030H2078B2741 - 46 -
1 (c) Increase by bureau.--If the Bureau of Professional and
2 Occupational Affairs determines that the fees established by the
3 board pursuant to subsections (a) and (b) are inadequate to meet
4 the minimum enforcement efforts required by this chapter, then
5 the bureau, after consultation with the board, shall increase
6 the fees by regulation so that adequate revenues are raised to
7 meet the required enforcement effort.
8 (d) Review.--Any regulation promulgated under this section
9 shall be subject to the act of June 25, 1982 (P.L.633, No.181),
10 known as the Regulatory Review Act.
11 (e) Depository.--All fees and fines collected pursuant to
12 the provisions of this chapter shall be paid into the
13 Professional Licensure Augmentation Account established pursuant
14 to and for the use and in accordance with the act of July 1,
15 1978 (P.L.700, No.124), known as the Bureau of Professional and
16 Occupational Affairs Fee Act.
17 Section 507. Licensure by endorsement.
18 Upon application and payment of the licensing fees, as
19 provided for in this chapter, the board shall issue a license in
20 massage to a person who has a valid license in massage or
21 similar practice from another state, territory, possession or
22 country with a standard of qualifications substantially
23 equivalent to or greater than that provided for in this chapter
24 and the applicant has complied with any related rules and
25 regulations of the board.
26 Section 508. License renewal and continuing education.
27 (a) General rule.--Licenses issued under this chapter shall
28 be renewed every two years from the issue date. The board shall
29 mail an application for renewal of license to each person to
30 whom a license was issued or renewed during the current
20030H2078B2741 - 47 -
1 licensing period, which application shall be mailed to the most
2 recent address of the person as it appears on the records of the
3 board. Such person shall complete the renewal application and
4 return it to the board with a renewal fee before the expiration
5 date of the license. Upon receipt of any such application and
6 fee, the board, upon verifying the accuracy and completeness of
7 the application, including the applicant's current certification
8 in cardiopulmonary resuscitation, shall issue to the applicant a
9 renewed license for the next licensing period. The renewal fee
10 for each licensing period shall be set by regulation.
11 (b) Continuing education.--When renewing a license, each
12 licensee shall submit to the board evidence of the successful
13 completion of a minimum of 24 hours of study in the field of
14 massage therapy during the immediately preceding two years as
15 approved by the board.
16 (c) Resumption of practice.--Any person who has failed to
17 renew license issued under this chapter for a period longer than
18 five years shall be required to apply for a license as if the
19 person never possessed a license if the person desires to resume
20 practicing massage therapy.
21 Section 509. Display of license.
22 The board may, by regulation, require the posting of all
23 licenses issued under this chapter.
24 Section 510. Communication with licensees.
25 The board shall communicate with licensees on issues
26 affecting the education, practice and regulation of massage
27 therapy.
28 Section 511. Refusal, suspension or revocation of licensure.
29 (a) Authority.--The board may refuse to issue or renew a
30 license or may suspend or revoke a license for any of the
20030H2078B2741 - 48 -
1 following reasons:
2 (1) Failing to demonstrate the qualifications or
3 standards for a license contained in this chapter or
4 regulations of the board.
5 (2) Making misleading, deceptive, untrue or fraudulent
6 representations in the practice of massage therapy.
7 (3) Practicing fraud or deceit in obtaining a license to
8 practice massage therapy.
9 (4) Displaying gross incompetence, negligence or
10 misconduct in carrying out the practice of massage therapy.
11 (5) Submitting a false or deceptive application to the
12 board.
13 (6) Being convicted of a felony or receiving probation
14 without verdict, disposition in lieu of trial or an
15 accelerated rehabilitative disposition in the disposition of
16 felony charges in a Federal Court, the courts of this
17 Commonwealth, or a court of any other state, territory,
18 possession or country.
19 (7) Having a license to practice massage therapy
20 suspended, revoked or refused or receiving other disciplinary
21 action by the appropriate massage therapist or similar
22 licensing authority of another state, territory, possession
23 or country.
24 (8) Being unable to practice massage therapy with
25 reasonable skill and safety to clients by reason of illness,
26 drunkenness, excessive use of drugs, narcotics, chemicals or
27 any other type of material, or as a result of any mental or
28 physical condition.
29 (9) Violating a lawful regulation promulgated by the
30 board or violating a lawful order of the board previously
20030H2078B2741 - 49 -
1 entered in a disciplinary proceeding.
2 (10) Knowingly aiding, assisting, procuring or advising
3 any unlicensed person to practice massage therapy contrary to
4 this chapter or to the regulations of the board.
5 (11) Practicing beyond or offering to practice beyond
6 the licensee's defined scope of practice or accepting and
7 performing professional practices or responsibilities which
8 the licensee knows or has reason to know that the licensee is
9 not licensed nor competent to perform.
10 (12) Falsely holding oneself out to be licensed to
11 practice massage therapy.
12 (13) Engages in conduct outside of but resulting from
13 the professional relationship which the board, by regulation,
14 declares to be unprofessional. Conduct under this paragraph
15 includes sexual conduct which has no therapeutic purpose,
16 including words, actions or a combination of words and
17 actions which are or are intended to be sexual in nature or
18 which may be construed by a reasonable person to be sexual in
19 nature.
20 (b) Sanctions.--If the board finds that the license of a
21 massage therapist may be refused, suspended or revoked under
22 subsection (a), the board may do any of the following:
23 (1) Deny the application for a license.
24 (2) Administer a public reprimand.
25 (3) Revoke, suspend, limit or otherwise restrict a
26 license, as determined by the board.
27 (4) Require a licensee to submit to the care, counseling
28 or treatment of a physician or a psychologist designated by
29 the board.
30 (5) Suspend enforcement of its finding and place a
20030H2078B2741 - 50 -
1 licensee on probation with the right to vacate the
2 probationary order for noncompliance.
3 (6) Restore or reissue a suspended license to practice
4 massage therapy and impose a disciplinary or corrective
5 measure which it might originally have imposed.
6 Section 512. Temporary suspension.
7 The board shall temporarily suspend a license under
8 circumstances as determined by the board to be of an immediate
9 and clear danger to the public health or safety. The board shall
10 issue an order to that effect without a hearing upon due notice
11 to the licensee at the licensee's last known address, which
12 order shall include a written statement of all allegations
13 against the licensee. The provisions of section 511(a)(9) shall
14 not apply to temporary suspension. The board shall thereupon
15 commence formal action to suspend, revoke or restrict the
16 license of the person concerned as otherwise provided for in
17 this chapter. All actions shall be taken promptly and without
18 delay. Within 45 days following the issuance of an order
19 temporarily suspending a license, the board shall conduct or
20 cause to be conducted a preliminary hearing to determine that
21 suspension. The licensee whose license has been temporarily
22 suspended may be present at the preliminary hearing and may be
23 represented by counsel, cross-examine witnesses, inspect
24 physical evidence, call witnesses, offer evidence and testimony
25 and make a record of the proceedings. If it is determined that
26 there is not a prima facie case, the suspended licensed shall be
27 immediately restored. The temporary suspension shall remain in
28 effect until vacated by the board, but in no event longer than
29 180 days.
30 Section 513. Automatic suspension.
20030H2078B2741 - 51 -
1 A license issued under this chapter shall automatically be
2 suspended upon the legal commitment of a licensee to an
3 institution because of mental incompetency from any cause upon
4 filing with the board a certified copy of such commitment,
5 conviction of a felony under the act of April 14, 1972 (P.L.233,
6 No.64), known as The Controlled Substance, Drug, Device and
7 Cosmetic Act, or conviction of an offense under the laws of
8 another jurisdiction which, if committed in this Commonwealth,
9 would be a felony under The Controlled Substance, Drug, Device
10 and Cosmetic Act, or a violation of section 511(12). Automatic
11 suspension under this section shall not be stayed pending any
12 appeal of a conviction. Restoration of the license shall be made
13 as provided in this chapter for revocation or suspension of a
14 license. As used in this section, the term "conviction" shall
15 include a judgment, an admission of guilt or a plea of nolo
16 contendere.
17 Section 514. Hearing and restoration to practice.
18 (a) Hearings.--Notwithstanding sections 512 and 513, any
19 person licensed by the board, or any applicant for licensure by
20 the board, who is affected by the actions of the board for any
21 reason referred to in this chapter shall be cited by the board
22 with a copy of the reasons and shall, upon request, have a
23 hearing before the board or before a hearing officer appointed
24 by the board.
25 (b) Procedure.--At any hearing, the licensed person or
26 applicant shall have the right to appear personally with or by
27 legal counsel, to cross-examine witnesses and to produce
28 witnesses and evidence. The board may subpoena witnesses and
29 documentary evidence on its own behalf and, if requested by the
30 licensed person or applicant, shall subpoena witnesses and
20030H2078B2741 - 52 -
1 documents on behalf of the licensee or applicant. The board may
2 administer oaths, examine witnesses and compel testimony. A
3 record of the hearing shall be made by the board and copy
4 furnished to the licensed person or applicant upon payment of a
5 reasonable charge.
6 (c) Decision.--A decision by the board shall be within 120
7 days after the final hearing conducted by the board. The
8 revocation or suspension, for any cause, of a license issued by
9 the board may be removed when it shall appear to the board to be
10 just and proper. Upon any removal of the revocation or
11 suspension of the license by the board, the name of the licensed
12 person shall be restored and replaced upon the record in the
13 office of the board.
14 (d) Return of license.--The board shall require a person
15 whose license has been suspended or revoked to return the
16 license in such manner as the board directs. A person who fails
17 to do so commits a misdemeanor of the third degree.
18 Section 515. Penalties and injunctive relief.
19 (a) Penalties.--A person who violates a provision of this
20 chapter as a first offense commits a misdemeanor and upon
21 conviction shall be punished by a fine of not less than $100 or
22 more than $500 or by imprisonment for not more than 15 days. A
23 person who commits subsequent offenses shall be subject to a
24 fine of not less than $500 or more than $1,000 and imprisonment
25 of not more than 30 days.
26 (b) Injunctive relief.--The board may, in the name of the
27 people of the Commonwealth, through the Office of Attorney
28 General, apply for injunctive relief in any court of competent
29 jurisdiction to enjoin any person from committing any violation
30 of this chapter. The injunction proceeding shall be in addition
20030H2078B2741 - 53 -
1 to and not in lieu of all penalties and other remedies in this
2 chapter.
3 (c) Civil penalty.--In addition to any other civil remedy or
4 criminal penalty provided for in existing law or in this
5 chapter, the board, by a vote of a majority of the quorum, may
6 levy a civil penalty of up to $500 on any current licensee who
7 violates any provision of this chapter or on any person who
8 practices massage therapy or holds out in any manner as such
9 without being properly licensed to do so under this chapter. The
10 board shall levy this penalty only after affording the accused
11 party the opportunity for a hearing as provided in 2 Pa.C.S.
12 (relating to administrative law and procedure).
13 (d) Depository.--All fines and civil penalties imposed in
14 accordance with this section shall be paid into the Professional
15 Licensure Augmentation Account.
16 (e) Ineligibility.--A person convicted of a violation of the
17 provisions of this chapter shall additionally be ineligible for
18 licensure as a massage therapist for a period of five years from
19 the date of conviction.
20 Section 516. Impaired professional.
21 (a) Consultant.--The board, with the approval of the
22 Commissioner of Professional and Occupational Affairs, shall
23 appoint and fix the compensation of a professional consultant
24 who is a licensee of the board, or such other professional as
25 the board may determine, with education and experience in the
26 identification, treatment and rehabilitation of persons with
27 physical or mental impairments. The consultant shall be
28 accountable to the board and shall act as a liaison between the
29 board and treatment programs, such as alcohol and drug treatment
30 programs licensed by the Department of Health, psychological
20030H2078B2741 - 54 -
1 counseling and impaired professional support groups, which are
2 approved by the board and which provide services to licensees
3 under this chapter.
4 (b) Treatment program.--The board may defer and ultimately
5 dismiss any of the types of corrective action set forth in this
6 chapter for an impaired professional as long as the professional
7 is progressing satisfactorily in an approved treatment program,
8 provided that the provisions of this subsection shall not apply
9 to a professional convicted of a felonious act prohibited by the
10 act of April 14, 1972 (P.L.233, No.64), known as The Controlled
11 Substance, Drug, Device and Cosmetic Act, or convicted of a
12 felony relating to a controlled substance in a court of law of
13 the United States or a court of law of any other state,
14 territory or country. An approved program provider shall, upon
15 request, disclose to the consultant such information in its
16 possession regarding an impaired professional in treatment which
17 the program provider is not prohibited from disclosing by an act
18 of this Commonwealth or another state. The requirement of
19 disclosure by an approved program provider shall apply in the
20 case of impaired professionals who enter an agreement in
21 accordance with this section, impaired professionals who are the
22 subject of a board investigation or disciplinary proceeding and
23 impaired professionals who voluntarily enter a treatment program
24 other than under the provisions of this section but who fail to
25 complete the program successfully or to adhere to an aftercare
26 plan developed by the program provider.
27 (c) Agreement.--An impaired professional who enrolls in an
28 approved treatment program shall enter into an agreement with
29 the board under which the professional's license shall be
30 suspended or revoked, but enforcement of that suspension or
20030H2078B2741 - 55 -
1 revocation may be stayed for the length of time the professional
2 remains in the program and makes satisfactory progress, complies
3 with the terms of the agreement and adheres to any limitations
4 on this practice imposed by the board to protect the public.
5 Failure to enter into such an agreement shall disqualify the
6 professional from the impaired professional program and shall
7 activate an immediate investigation and disciplinary proceeding
8 by the board.
9 (d) Enforcement.--If, in the opinion of the consultant after
10 consultation with the provider, an impaired professional who is
11 enrolled in an approved treatment program has not progressed
12 satisfactorily, the consultant shall disclose to the board all
13 information in the consultant's possession regarding the
14 professional, and the board shall institute proceedings to
15 determine if the stay of the enforcement of the suspension or
16 revocation of the impaired professional's license shall be
17 vacated.
18 (e) Immunity.--An approved program provider who makes a
19 disclosure pursuant to this section shall not be subject to
20 civil liability for the disclosure or its consequences.
21 (f) Impairment reports.--Any hospital or health care
22 facility, peer or colleague who has substantial evidence that a
23 licensee has an active addictive disease for which the licensee
24 is not receiving treatment, is diverting a controlled substance
25 or is mentally or physically incompetent to carry out the duties
26 of a licensee shall make or cause to be made a report to the
27 board, provided that any person or facility who acts in a
28 treatment capacity to an impaired massage therapist in an
29 approved treatment program is exempt from the mandatory
30 reporting requirements of this subsection. Any person or
20030H2078B2741 - 56 -
1 facility who reports pursuant to this section in good faith and
2 without malice shall be immune from any civil or criminal
3 liability arising from such report. Failure to provide such
4 report within a reasonable time from receipt of knowledge of
5 impairment shall subject the person or facility to a fine not to
6 exceed $1,000. The board shall levy this penalty only after
7 affording the accused party the opportunity for a hearing as
8 provided in 2 Pa.C.S. (relating to administrative law and
9 procedures).
10 Section 24. The addition of section 103 of the act shall not
11 affect the terms of members appointed under section 2.1 of the
12 act.
13 Section 25. When the State Board of Nursing is prepared to
14 implement Chapter 5 of the act, the board shall transmit notice
15 of that fact to the Legislative Reference Bureau for publication
16 in the Pennsylvania Bulletin.
17 Section 26. The sum of $75,000, or as much thereof as may be
18 necessary, is hereby appropriated to the Department of State for
19 the fiscal years July 1, 2003, to June 30, 2005, for the
20 administration of Chapter 5 of the act. The amount of the
21 appropriation shall be returned to the General Fund upon
22 accumulation of sufficient fees generated by Chapter 5 of the
23 act.
24 Section 27. This act shall take effect as follows:
25 (1) The following provisions shall take effect
26 immediately:
27 (i) Section 24 of this act.
28 (ii) Section 25 of this act.
29 (iii) Section 26 of this act.
30 (iv) This section.
20030H2078B2741 - 57 -
1 (2) The addition of Chapter 5 of the act shall take
2 effect upon publication of the notice under section 25 of
3 this act.
F30L63VDL/20030H2078B2741 - 58 -