PRIOR PRINTER'S NO. 3749 PRINTER'S NO. 3929
No. 2499 Session of 2008
INTRODUCED BY McCALL, SHIMKUS, BELFANTI, BEYER, BOBACK, BOYD,
BRENNAN, COHEN, CREIGHTON, DALEY, DALLY, J. EVANS, FRANKEL,
GEORGE, GINGRICH, GRUCELA, HARHAI, HARKINS, HARPER, JAMES,
JOSEPHS, KAUFFMAN, KORTZ, KULA, MAHER, MOYER, MUNDY, PALLONE,
PETRARCA, READSHAW, SCAVELLO, SEIP, SIPTROTH,
McILVAINE SMITH, SOLOBAY, SONNEY, SURRA, WHEATLEY, MAHONEY,
WALKO, ROCK, THOMAS, FREEMAN AND K. SMITH, MAY 13, 2008
AS REPORTED FROM COMMITTEE ON PROFESSIONAL LICENSURE, HOUSE OF
REPRESENTATIVES, AS AMENDED, JUNE 11, 2008
AN ACT
1 Regulating massage therapy; establishing the State Board of
2 Massage Therapy; providing for funds, for licensure, for
3 disciplinary action, for remedies and, for penalties AND FOR <--
4 PREEMPTION; and making an appropriation.
5 The General Assembly of the Commonwealth of Pennsylvania
6 hereby enacts as follows:
7 Section 1. Short title.
8 This act shall be known and may be cited as the Massage
9 Therapy Law.
10 Section 2. Declaration of policy.
11 The General Assembly finds and declares as follows:
12 (1) The practice of massage therapy may cause public
13 safety issues if the practice is not subject to responsible
14 regulation.
15 (2) Reasonable regulation is in furtherance of public
16 health, safety and welfare interests.
1 (3) Regulation is necessary to set educational standards
2 within the profession and to protect the public from
3 unqualified massage therapy practitioners and unscrupulous
4 individuals.
5 (4) Consumer protection with respect to both health and
6 economic matters will be afforded the public through the
7 regulation and associated legal remedies provided for in this
8 act.
9 Section 3. Definitions.
10 The following words and phrases when used in this act shall
11 have the meanings given to them in this section unless the
12 context clearly indicates otherwise:
13 "Account." The Professional Licensure Augmentation Account.
14 "Applicant." An individual who applies for a license.
15 "Board." The State Board of Massage Therapy.
16 "Bureau." The Bureau of Professional and Occupational
17 Affairs.
18 "Commissioner." The Commissioner of Professional and
19 Occupational Affairs.
20 "CONVICTED." INCLUDES A FINDING OR VERDICT OF GUILT, AN <--
21 ADMISSION OF GUILT, A PLEA OF NOLO CONTENDERE OR A SENTENCE OF
22 PROBATION WITHOUT VERDICT, DISPOSITION IN LIEU OF TRIAL OR AN
23 ACCELERATED REHABILITATIVE DISPOSITION IN THE DISPOSITION OF
24 FELONY CHARGES.
25 "Department." The Department of State of the Commonwealth.
26 "License." A license to practice massage therapy under this
27 act.
28 "Licensee." An individual who holds a license to practice
29 massage therapy.
30 "Massage therapist." An individual licensed by the board to
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1 practice massage therapy.
2 "Massage therapy." The application of a system of structured
3 touch, pressure, movement, holding and treatment of the soft
4 tissue manifestations of the human body in which the primary
5 intent is to enhance THE health and well-being of the client <--
6 without limitation, except as provided in this act. The term
7 includes the external application of water, heat, cold,
8 lubricants or other topical preparations, lymphatic techniques,
9 myofascial release techniques and the use of electro-mechanical
10 devices which mimic or enhance the action of the massage
11 techniques. The term does not include the diagnosis or treatment
12 of impairment, illness, disease or disability, a medical
13 procedure, a chiropractic manipulation/adjustment, physical
14 therapy mobilization/manual therapy, therapeutic exercise,
15 electrical stimulation, ultrasound or prescription of medicines
16 for which a license to practice medicine, chiropractic, physical
17 therapy, occupational therapy, podiatry or other practice of the
18 healing arts is required.
19 "Reflexology." The physical act of using thumbs, fingers and
20 hand techniques to apply specific pressure on the reflex area in
21 the feet, hands or ears of the client.
22 "Sexual behavior." Conduct which is or is intended to be
23 sexual in nature or which may be construed by a reasonable
24 person as sexual in nature.
25 "Sexual exploitation." Sexual behavior with a current client
26 which uses trust, knowledge, emotions or influence derived from
27 the professional relationship.
28 "Sexual offense." An offense under any provision of 18
29 Pa.C.S. (relating to crimes and offenses).
30 Section 4. Board.
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1 (a) Establishment.--There is established the State Board of
2 Massage Therapy, an administrative board within the department.
3 The board shall consist of nine members who are citizens of the
4 United States and who have been residents of this Commonwealth
5 for at least a two-year period prior to the effective date of
6 this section. Two members shall be public members, five members <--
7 shall be individuals who meet the educational and experience
8 qualifications for licensure under section 6, one member shall
9 be the Secretary of Health or a designee and one member shall be
10 the commissioner or a designee. THE BOARD SHALL BE COMPOSED OF <--
11 THE FOLLOWING INDIVIDUALS:
12 (1) TWO MEMBERS WHO ARE MEMBERS OF THE PUBLIC.
13 (2) FIVE MEMBERS WHO MEET THE EDUCATIONAL AND EXPERIENCE
14 QUALIFICATIONS FOR LICENSURE UNDER SECTION 6. NO MORE THAN
15 ONE MEMBER UNDER THIS PARAGRAPH SHALL BE AN OWNER OF A SCHOOL
16 THAT PROVIDES INSTRUCTION IN MASSAGE THERAPY.
17 (3) THE SECRETARY OF HEALTH OR A DESIGNEE.
18 (4) THE COMMISSIONER OR A DESIGNEE.
19 (b) Term of office.--Except as provided in subsection (c),
20 the members of the board shall serve for four-year terms and
21 shall be appointed by the Governor by and with the advice and
22 consent of a majority of the members elected to the Senate.
23 (c) Initial appointments.--Within 90 days of the effective
24 date of this section, the Governor shall nominate two
25 professional members to serve four-year terms, one public member
26 and one professional member to serve three-year terms, one
27 public member and one professional member to serve two-year
28 terms and one professional member to serve a one-year term. A
29 professional member initially appointed to the board pursuant to
30 this act need not be licensed at the time of appointment but at
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1 the time of appointment must have satisfied the eligibility
2 requirements for licensure and must have practiced massage
3 therapy for at least five consecutive years FIVE CONSECUTIVE <--
4 YEARS OR MORE immediately preceding the appointments.
5 (d) Continuation in office.--Each board member shall
6 continue in office until a successor is appointed and qualified
7 but no longer than six months after the expiration of the term.
8 If a board member shall die, resign or otherwise become
9 disqualified during the term of office, a successor shall be
10 appointed in the same way and with the same qualifications as
11 set forth in this section and shall hold office for the
12 unexpired portion of the term.
13 (e) Limit on terms.--No board member shall be eligible for
14 reappointment to serve more than two consecutive four-year
15 terms.
16 (f) Forfeiture of membership.--A board member who fails to
17 attend three consecutive meetings without permission of the
18 commissioner shall forfeit the member's seat unless the
19 commissioner, upon written request from the member, finds that
20 the member should be excused from a meeting because of illness
21 or the death of a family member.
22 (g) Compensation.--A member of the board, except the
23 commissioner, shall receive per diem compensation at the rate of
24 $60 when actually attending to the work of the board. Members
25 shall also receive reasonable traveling, hotel and other
26 necessary expenses incurred in the performance of their duties
27 in accordance with regulations.
28 (h) Forfeiture for nonattendance.--A public member who fails
29 to attend two consecutive statutorily mandated training seminars
30 in accordance with section 813(e) of the act of April 9, 1929
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1 (P.L.177, No.175), known as The Administrative Code of 1929,
2 shall forfeit the public member's seat unless the commissioner,
3 upon written request from the public member, finds that the
4 public member should be excused from a meeting because of
5 illness or the death of a family member.
6 (i) Quorum.--A majority of the members of the board shall
7 constitute a quorum for the purposes of conducting the business
8 of the board. Except for temporary and automatic suspensions
9 under section 10(d), a member may not be counted as part of a
10 quorum or vote on any issue unless the member is physically in
11 attendance at the meeting.
12 (j) Chairperson.--The board shall annually select a
13 chairperson from among its members.
14 (k) Meetings.--The board shall meet at least four times a
15 year in Harrisburg and at other times and places as the board
16 shall determine is necessary to conduct board business.
17 (l) Notice.--Reasonable notice of all meetings shall be
18 given in conformity with 65 Pa.C.S. Ch. 7 (relating to open
19 meetings).
20 (m) Operating procedures.--The board shall meet within 30
21 days after the appointment of its initial members and shall
22 institute operating procedures and an application form for
23 licensing massage therapists. It shall be the responsibility of
24 the board to educate the public as to the requirements of
25 licensing in order to hold oneself out or to practice as a
26 licensed massage therapist within this Commonwealth.
27 Section 5. Powers and duties of board.
28 The board has the following powers and duties:
29 (1) To pass upon the qualifications and fitness of
30 applicants for licenses and reciprocal licenses and to
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1 promulgate regulations requiring applicants to pass
2 examinations relating to qualifications as a prerequisite to
3 the issuance of a license.
4 (2) To promulgate regulations not inconsistent with this
5 act and only as necessary to carry out this act.
6 (3) To examine, deny, approve, issue, revoke, suspend or
7 renew licenses of massage therapists under this act and to
8 conduct hearings in connection with those powers and duties.
9 (4) To conduct hearings upon complaints concerning
10 violations of this act and the regulations promulgated under
11 this act and to seek the prosecution and enjoinder of
12 violations.
13 (5) To expend money necessary to the proper carrying out
14 of its assigned duties.
15 (6) To submit annually a report to the Consumer
16 Protection and Professional Licensure Committee of the Senate
17 and the Professional Licensure Committee of the House of
18 Representatives containing a description of the types of
19 complaints received, status of the cases, board action which
20 has been taken and length of time from the initial complaint
21 to final board resolution.
22 (7) To submit annually to the Appropriations Committee
23 of the Senate and the Appropriations Committee of the House
24 of Representatives, within 15 days after the Governor has
25 submitted a budget to the General Assembly, a copy of the
26 budget request for the upcoming fiscal year which the board
27 previously submitted to the department.
28 (8) To establish standards of eligibility for license
29 renewal. These standards shall include, but not be limited
30 to, the demonstration of satisfactory completion of a minimum
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1 of 24 hours of continuing education related to the practice
2 of massage therapy in accordance with board regulations. No
3 credit may be given for courses in office management or
4 practice building. The board may waive all or part of the
5 continuing education requirement to a licensee who shows to
6 the satisfaction of the board that the licensee was unable to
7 complete the requirement due to illness, emergency or
8 hardship.
9 Section 6. Qualification for licensure.
10 (a) Applicants.--An applicant shall be considered to be
11 qualified for a license if the applicant submits proof
12 satisfactory to the board of all of the following:
13 (1) The applicant is of good moral character.
14 (2) The applicant has a high school diploma or its
15 equivalent.
16 (3) The applicant has completed a massage program of at
17 least 600 hours of in-class, postsecondary education
18 instruction approved by the Department of Education or by the
19 board. The program under this paragraph must include training
20 in the human immunodeficiency virus and related risks and
21 training in cardiopulmonary resuscitation.
22 (4) The applicant has passed an examination under
23 section 8.
24 (5) The applicant has paid a fee as established by the
25 board by regulation.
26 (6) The applicant is not addicted to alcohol, narcotics
27 or other habit-forming drugs.
28 (7) The following apply: <--
29 (i) The applicant has not been convicted of a felony
30 under the act of April 14, 1972 (P.L.233, No.64), known
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1 as The Controlled Substance, Drug, Device and Cosmetic
2 Act, or of an offense under the laws of another
3 jurisdiction which, if committed in this Commonwealth,
4 would be a felony under The Controlled Substance, Drug,
5 Device and Cosmetic Act, unless the following apply:
6 (A) At least ten years have elapsed from the
7 date of conviction.
8 (B) The applicant satisfactorily demonstrates to
9 the board that the applicant has made significant
10 progress in personal rehabilitation since the
11 conviction and that licensure of the applicant should
12 not be expected to create a substantial risk of harm
13 to the health and safety of the applicant's clients
14 or the public or a substantial risk of further
15 criminal violations.
16 (C) The applicant otherwise satisfies the
17 qualifications required under this act.
18 (ii) The term "convicted" shall include a judgment,
19 an admission of guilt or a plea of nolo contendere.
20 (7) THE APPLICANT HAS NOT BEEN CONVICTED OF A FELONY <--
21 UNDER THE ACT OF APRIL 14, 1972 (P.L.233, NO.64), KNOWN AS
22 THE CONTROLLED SUBSTANCE, DRUG, DEVICE AND COSMETIC ACT, OR
23 OF AN OFFENSE UNDER THE LAWS OF ANOTHER JURISDICTION WHICH,
24 IF COMMITTED IN THIS COMMONWEALTH, WOULD BE A FELONY UNDER
25 THE CONTROLLED SUBSTANCE, DRUG, DEVICE AND COSMETIC ACT,
26 UNLESS THE FOLLOWING APPLY:
27 (I) AT LEAST TEN YEARS HAVE ELAPSED FROM THE DATE OF
28 CONVICTION.
29 (II) THE APPLICANT SATISFACTORILY DEMONSTRATES TO
30 THE BOARD THAT THE APPLICANT HAS MADE SIGNIFICANT
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1 PROGRESS IN PERSONAL REHABILITATION SINCE THE CONVICTION
2 AND THAT LICENSURE OF THE APPLICANT SHOULD NOT BE
3 EXPECTED TO CREATE A SUBSTANTIAL RISK OF HARM TO THE
4 HEALTH AND SAFETY OF THE APPLICANT'S CLIENTS OR THE
5 PUBLIC OR A SUBSTANTIAL RISK OF FURTHER CRIMINAL
6 VIOLATIONS.
7 (III) THE APPLICANT OTHERWISE SATISFIES THE
8 QUALIFICATIONS REQUIRED UNDER THIS ACT.
9 (b) Existing practitioners.--The board shall issue a license
10 to an applicant who, on the effective date of this subsection,
11 complies with all of the following paragraphs:
12 (1) Is an active professional practitioner of massage
13 therapy.
14 (2) Meets the qualifications described in subsection
15 (a)(1), (2), (5), (6) and (7).
16 (3) Complies with one of the following subparagraphs:
17 (i) Has:
18 (A) been in active, continuous practice for at
19 least five years immediately preceding the effective
20 date of this section; and
21 (B) completed 150 hours of instruction in
22 massage, INCLUDING CONTINUING EDUCATION and related <--
23 subjects.
24 (ii) Has passed an examination administered by a
25 certifying agency which is approved by the National
26 Commission of Certifying Agencies and is in good standing
27 with the certifying agency or with the board.
28 (iii) Has completed 500 hours of instruction in
29 massage and related subjects from a massage therapy
30 program approved by the Department of Education or by the
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1 board.
2 (c) Temporary practice permit.--
3 (1) The board may issue a temporary practice permit to
4 an applicant in order to permit the applicant to practice
5 massage therapy during the six-month period after completion
6 of the applicant's education program.
7 (2) The temporary practice permit issued under paragraph
8 (1) shall be nonrenewable and shall expire on the earlier of:
9 (i) six months from the date of issuance; or
10 (ii) the date the applicant fails the licensing
11 examination.
12 (d) Transferability.--A license and a temporary practice
13 permit are not transferable.
14 Section 7. Biennial renewal of license.
15 (a) Duration of license.--A license shall be valid for two
16 years. The expiration date shall be established by regulation of
17 the board. Application for renewal of a license shall be
18 forwarded to an individual holding a current license prior to
19 the expiration date of the current renewal.
20 (b) Procedure.--To renew a license, a licensee must do all
21 of the following:
22 (1) File a renewal application with the board which
23 includes the following:
24 (i) Current certification to administer
25 cardiopulmonary resuscitation.
26 (ii) Certification of successful completion of a
27 minimum of 24 hours of continuing education in the field
28 of massage therapy during the immediately preceding two
29 years. Certification of continuing education credit hours
30 submitted by the massage therapist shall be properly
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1 signed as being correct and true.
2 (2) Pay a fee established by regulation of the board.
3 (c) Inactive status.--Any person licensed under this act may
4 request an application for inactive status. The application may
5 be completed and returned to the board; upon receipt of each
6 application, the applicant shall be maintained on inactive
7 status without fee and shall be entitled to apply for an active
8 license at any time. An application to reactivate a license
9 which has been placed on inactive status for less than five
10 years shall be accompanied by a verification of nonpractice, the
11 renewal fee and documentation evidencing the satisfactory
12 completion of the continuing education requirement for the
13 preceding biennial period. Any person who requests an active
14 status license who has been on inactive status for a period of
15 five consecutive years or longer shall, prior to receiving an
16 active license, satisfy the requirements of the board's
17 regulations for ensuring continued competence and remit the
18 required fee. A person shall not be denied active status as a
19 result of any increased educational requirements for licensure
20 since the time he or she received his or her original license.
21 (d) Reporting of multiple licensure.--A licensee who is
22 licensed to practice massage therapy in another jurisdiction
23 shall report this information to the board on the license
24 renewal application. Any disciplinary action taken in another
25 jurisdiction shall be reported to the board on the license
26 renewal application or within 90 days of final disposition,
27 whichever is sooner. Multiple licensure shall be noted by the
28 board on the licensee's record, and the other licensing
29 jurisdiction shall be notified by the board of any disciplinary
30 actions taken against the licensee in this Commonwealth.
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1 Section 8. Examinations.
2 The board shall contract with a professional testing
3 organization for the examination of qualified applicants for
4 licensure. The board shall approve the examination before it is
5 administered. ANY EXAMINATION APPROVED BY THE BOARD MUST MEET <--
6 GENERALLY RECOGNIZED PSYCHOMETRIC PRINCIPLES AND STANDARDS. All
7 written, oral and practical examinations shall be prepared and
8 administered by a qualified and approved professional testing
9 organization in the manner prescribed for written examinations
10 by section 812.1 of the act of April 9, 1929 (P.L.177, No.175),
11 known as The Administrative Code of 1929.
12 Section 9. Reciprocity.
13 The board has the power to grant a reciprocal license to an
14 applicant who is licensed or certified as a massage therapist or
15 similar practice in another state and has demonstrated
16 qualifications which equal or exceed those required under this
17 act in the determination of the board. No license shall be
18 granted under this section to an applicant unless the state in
19 which the applicant is licensed affords reciprocal treatment to
20 individuals who are residents of this Commonwealth and who are
21 licensed under this act.
22 Section 10. Refusal, suspension and revocation of licenses.
23 (a) Grounds.--The board may refuse, suspend, revoke, limit
24 or restrict a license or discipline a licensee for any of the
25 following:
26 (1) Being convicted under Federal law, under the law of
27 any state or under the law of another jurisdiction of an
28 offense of moral turpitude or of an offense which, if
29 committed in this Commonwealth, would constitute a sexual
30 offense or a felony. As used in this paragraph, the term <--
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1 "convicted" includes a finding or verdict of guilt, an
2 admission of guilt or a plea of nolo contendere or receiving
3 probation without verdict, disposition in lieu of trial or an
4 accelerated rehabilitative disposition in the disposition of
5 felony charges.
6 (2) Being found to have engaged in immoral or
7 unprofessional conduct. In proceedings based on this
8 paragraph, actual injury to the client need not be
9 established. As used in this paragraph, the term
10 "unprofessional conduct" includes:
11 (i) a departure from or failure to conform to the
12 standards of acceptable and prevailing practice; and
13 (ii) sexual exploitation of a client.
14 (3) Violating standards of professional practice or
15 conduct as established by board regulation.
16 (4) Presenting false credentials or documents or making
17 a false statement of fact in support of the individual's
18 application for a license.
19 (5) Submitting a false or deceptive license renewal to
20 the board.
21 (6) Having a license suspended, revoked or refused or
22 receiving other disciplinary action by the proper licensing
23 authority of another jurisdiction.
24 (7) Violating a regulation promulgated by the board or
25 violating an order of the board previously entered in a
26 disciplinary proceeding.
27 (8) Incompetence, negligence or misconduct in carrying
28 out the practice of massage therapy.
29 (9) Practicing beyond the licensee's defined scope of
30 practice.
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1 (10) Knowingly aiding, assisting, hiring or advising
2 someone in the unlawful practice of massage therapy.
3 (11) Being unable to practice with reasonable skill and
4 safety by reason of illness; drunkenness; use of drugs,
5 narcotics, chemicals or any other type of material; or as a
6 result of any mental or physical condition. In enforcing this
7 paragraph, the board, upon probable cause, has authority to
8 compel a licensee to submit to a mental or physical
9 examination by a physician approved by the board. Failure of
10 a licensee to submit to an examination when directed by the
11 board, unless the failure is due to circumstances beyond the
12 licensee's control, may result in a default and final order
13 entered against the licensee without the taking of testimony
14 or presentation of evidence. A licensee affected under this
15 paragraph shall be afforded an opportunity to demonstrate
16 that the licensee can resume competent practice with
17 reasonable skill and safety.
18 (b) Board action.--If the board finds that the license or
19 application for license may be refused, revoked, restricted or
20 suspended under the terms of subsection (a), the board may do
21 any of the following:
22 (1) Deny the application for a license.
23 (2) Administer a public reprimand.
24 (3) Revoke, suspend, limit or otherwise restrict a
25 license.
26 (4) Require a licensee to submit to the care, counseling
27 or treatment of a physician.
28 (5) Suspend enforcement of its findings and place a
29 licensee on probation with the right to vacate the
30 probationary order for noncompliance.
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1 (6) Restore a suspended license and impose any
2 disciplinary or corrective measure which it might originally
3 have imposed.
4 (c) Administrative Agency Law.--Actions of the board under
5 subsections (a) and (b) are subject to 2 Pa.C.S. Ch. 5 Subch. A
6 (relating to practice and procedure of Commonwealth agencies)
7 and Ch. 7 Subch. A (relating to judicial review of Commonwealth
8 agency action).
9 (d) Temporary and automatic suspension.--A license issued
10 under this act shall be temporarily suspended under
11 circumstances determined by the board to be an immediate and
12 clear danger to the public health and safety. The board shall
13 issue an order to that effect without a hearing, but upon due
14 notice, to the licensee concerned at his or her last known
15 address, which shall include a written statement of all
16 allegations against the licensee. The provisions of subsection
17 (c) shall not apply to temporary suspension. The board shall
18 thereupon commence formal action to suspend, revoke or restrict
19 the license of the person concerned as otherwise provided for in
20 this act. All actions shall be taken promptly and without delay.
21 Within 30 days following the issuance of an order temporarily
22 suspending a license, the board shall conduct or cause to be
23 conducted a preliminary hearing to determine that there is a
24 prima facie case supporting the suspension. The licensee whose
25 license has been temporarily suspended may be present at the
26 preliminary hearing and may be represented by counsel, cross-
27 examine witnesses, inspect physical evidence, call witnesses,
28 offer evidence and testimony and make a record of the
29 proceedings. If it is determined that there is not a prima facie
30 case, the suspended license shall be immediately restored. The
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1 temporary suspension shall remain in effect until vacated by the
2 board, but in no event longer than 180 days.
3 Section 11. Reinstatement of license.
4 Unless ordered to do so by a court of competent jurisdiction,
5 the board shall not reinstate the license of an individual which
6 has been revoked. An individual whose license has been revoked
7 may reapply for a license after a period of at least five years,
8 and must meet all of the licensing requirements of this act.
9 Section 12. Impaired professional.
10 (a) Appointment of professional consultant.--The board, with
11 the approval of the commissioner, shall appoint and fix the
12 compensation of a professional consultant who is a licensee of
13 the board, or such other professional as the board may determine
14 with education and experience in the identification, treatment
15 and rehabilitation of persons with physical or mental
16 impairments. Such consultant shall be accountable to the board
17 and shall act as a liaison between the board and treatment
18 programs, such as alcohol and drug treatment programs licensed
19 by the Department of Health, psychological counseling and
20 impaired professional support groups, which are approved by the
21 board and which provide services to licensees under this act.
22 (b) Subsequent action by board.--The board may defer and
23 ultimately dismiss any of the types of corrective action set
24 forth in this act for an impaired professional so long as the
25 professional is progressing satisfactorily in an approved
26 treatment program, provided that the provisions of this
27 subsection shall not apply to a professional convicted of a
28 felonious act prohibited by the act of April 14, 1972 (P.L.233,
29 No.64), known as The Controlled Substance, Drug, Device and
30 Cosmetic Act, or convicted of, pleaded guilty to or entered a
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1 plea of nolo contendere to a felony relating to a controlled
2 substance in a court of law of the United States or any other
3 state, territory or country. An approved program provider shall,
4 upon request, disclose to the consultant such information in its
5 possession regarding any impaired professional in treatment
6 which the program provider is not prohibited from disclosing by
7 an act of the United States, this Commonwealth or any other
8 state. Such requirement of disclosure by an approved program
9 provider shall apply in the case of impaired professionals who
10 enter an agreement in accordance with this section, impaired
11 professionals who are the subject of a board investigation or
12 disciplinary proceeding and impaired professionals who
13 voluntarily enter a treatment program other than under the
14 provisions of this section but who fail to complete the program
15 successfully or to adhere to an aftercare plan developed by the
16 program provider.
17 (c) Agreement.--An impaired professional who enrolls in an
18 approved treatment program shall enter into an agreement with
19 the board under which the professional's license shall be
20 suspended or revoked, but enforcement of the suspension or
21 revocation may be stayed for the length of time the professional
22 remains in the program and makes satisfactory progress, complies
23 with the terms of the agreement and adheres to any limitations
24 on his or her practice imposed by the board to protect the
25 public. Failure to enter into such an agreement shall disqualify
26 the professional from the impaired professional program and
27 shall activate an immediate investigation and disciplinary
28 proceeding by the board.
29 (d) Report by provider.--If, in the opinion of the
30 consultant after consultation with the provider, an impaired
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1 professional who is enrolled in an approved treatment program
2 has not progressed satisfactorily, the consultant shall disclose
3 to the board all information in his or her possession relevant
4 to the issue of impairment regarding said professional, and the
5 board shall institute proceedings to determine if the stay of
6 the enforcement of the suspension or revocation of the impaired
7 professional's license shall be vacated.
8 (e) Immunity.--An approved program provider who makes a
9 disclosure pursuant to this section shall not be subject to
10 civil liability for such disclosure or its consequences.
11 (f) Reports by others.--Any hospital or health care
12 facility, peer or colleague who has substantial evidence that a
13 professional has an active addictive disease for which the
14 professional is not receiving treatment, is diverting a
15 controlled substance or is mentally or physically incompetent to
16 carry out the duties of his or her license shall make or cause
17 to be made a report to the board, provided that any person or
18 facility who acts in a treatment capacity to an impaired
19 professional in an approved treatment program is exempt from the
20 mandatory reporting requirement of this subsection. Any person
21 or facility who reports pursuant to this section in good faith
22 and without malice shall be immune from any civil or criminal
23 liability arising from such report. Failure to provide such
24 report within a reasonable time from receipt of knowledge of
25 impairment shall subject the person or facility to a fine of not
26 more than $1,000. The board shall levy this penalty only after
27 affording the accused party the opportunity for a hearing, as
28 provided under 2 Pa.C.S. (relating to administrative law and
29 procedure).
30 Section 13. Records and fees.
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1 (a) Records.--A record of all licensees shall be kept in the
2 office of the board and shall be open to public inspection and
3 copying upon payment of a reasonable fee for copying the record.
4 (b) Fees.--
5 (1) All fees required under this act shall be fixed by
6 the board by regulation. If the revenue raised by fees, fines
7 and civil penalties imposed under this act are not sufficient
8 to meet expenditures over a two-year period, the board shall
9 increase those fees by regulation so that the projected
10 revenues will meet or exceed projected expenditures.
11 (2) If the bureau determines that the fees established
12 by the board under paragraph (1) are inadequate to meet the
13 minimum enforcement efforts required by this act, the bureau,
14 after consultation with the board, shall increase the fees by
15 regulation in an amount so that adequate revenues are raised
16 to meet the required enforcement effort.
17 Section 14. Other professions.
18 Nothing in this act shall be construed as preventing,
19 restricting or requiring licensure of any of the following
20 activities:
21 (1) The practice of a profession by an individual who is
22 licensed, certified or registered by a Commonwealth agency
23 under other law and who is performing services or advertising
24 within the authorized scope of practice.
25 (2) The practice of massage therapy by an individual
26 employed by the Federal Government while the individual is
27 engaged in the performance of duties under Federal law.
28 (3) A student enrolled in a massage therapy education
29 program who is:
30 (i) conducting massage therapy activities under the
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1 supervision of:
2 (A) a licensee; or
3 (B) instructors or supervisors who meet the
4 licensing criteria of the Department of Education or
5 the board; and
6 (ii) enrolled in a school approved by the Department
7 of Education or by the board.
8 (4) The practice by an individual while performing
9 reflexology.
10 (5) The practice of an individual who uses touch, words
11 and directed movement to deepen awareness of existing
12 patterns of movement in the body and to suggest new
13 possibilities of movement, while engaged within the scope of
14 practice of a profession with established standards and
15 ethics.
16 (6) The practice of an individual who uses touch to
17 affect the energy systems, accupoints, Qi meridians or
18 channels of energy of the human body while engaged within the
19 scope of practice of a profession with established standards
20 and ethics.
21 Section 15. Unlawful practice.
22 (a) General rule.--Except as set forth in section 14(1) and
23 (2), an individual may not practice massage therapy or hold
24 oneself out as a massage therapist unless licensed by the board.
25 (b) Title.--An individual who holds a license or is
26 maintained on inactive status may use the title "Licensed
27 Massage Therapist" and the abbreviation "L.M.T." No other
28 individual may use the title "Licensed Massage Therapist" or the
29 title "Massage Therapist" or hold oneself out to others as a
30 massage therapist. This subsection includes advertising as a
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1 massage therapist and adopting or using any title or
2 description, including massage therapist, massage practitioner,
3 masseur, masseuse, myotherapist or a derivative of those terms
4 and their related abbreviations, which implies directly or
5 indirectly that massage services are being provided.
6 (c) Employment.--An individual, corporation, partnership,
7 firm or other entity may not employ an individual in massage
8 therapy unless the individual is licensed by the board.
9 (d) Terminology.--Except as set forth in section 14(1), a
10 business entity may not utilize in connection with a business
11 name or activity the words, "massage," "massage therapist,"
12 "massage practitioner," "masseur," "masseuse" or "myotherapist,"
13 or any derivative of these terms and their related
14 abbreviations, which imply directly or indirectly that massage
15 therapy services are being provided, unless the services of the
16 business are provided by licensees.
17 (e) Injunction.--Unlawful practice may be enjoined by the
18 courts upon petition of the commissioner or the board. In a
19 proceeding under this section, it shall not be necessary to show
20 that an individual has been injured. Procedure in such cases
21 shall be the same as in any other injunction suit.
22 (f) Remedy cumulative.--The injunctive remedy provided in
23 this section shall be in addition to any other civil or criminal
24 prosecution and punishment.
25 Section 16. Violation of act.
26 (a) General rule.--Notwithstanding any law to the contrary,
27 a person that violates a provision of this act or a regulation
28 of the board commits a misdemeanor of the third degree and
29 shall, upon conviction, be sentenced to pay a fine of not more
30 than $1,000 or to imprisonment for not more than six months for
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1 the first violation and to pay a fine of not more than $2,000 or
2 to imprisonment for not less than six months or more than one
3 year, or both, for each subsequent violation.
4 (b) Civil penalty.--In addition to any other civil remedy or
5 criminal penalty provided for in this act, the board, by a vote
6 of the majority of the maximum number of the authorized
7 membership of the board or by a vote of the majority of the
8 qualified and confirmed membership or a minimum of five members,
9 whichever is greater, may levy a civil penalty of up to $10,000
10 on any of the following:
11 (1) A massage therapist who violates a provision of this
12 act.
13 (2) A person that employs a massage therapist in
14 violation of this act.
15 (3) An individual who holds himself out as a licensee
16 without being properly licensed as provided in this act.
17 (4) The responsible officers or employees of a
18 corporation, partnership, firm or other entity that violates
19 a provision of this act.
20 (C) ASSESSMENT OF COSTS OF INVESTIGATION.--THE BOARD MAY <--
21 ASSESS AGAINST A RESPONDENT DETERMINED TO BE IN VIOLATION OF THE
22 DISCIPLINARY PROVISIONS ADMINISTERED BY THE BOARD IN A
23 DISCIPLINARY PROCEEDING PENDING BEFORE THE BOARD FOR FINAL
24 DETERMINATION, AS PART OF THE SANCTION, THE COSTS OF
25 INVESTIGATION UNDERLYING THAT DISCIPLINARY ACTION. THE COST OF
26 INVESTIGATION SHALL NOT INCLUDE ANY ASSOCIATED LEGAL FEES OR ANY
27 COST OF PROSECUTION.
28 (c) (D) Administrative Agency Law.--Action of the board <--
29 under subsection (b) is subject to 2 Pa.C.S. Ch. 5 Subch. A
30 (relating to practice and procedure of Commonwealth agencies)
20080H2499B3929 - 23 -
1 and Ch. 7 Subch. A (relating to judicial review of Commonwealth
2 agency action).
3 SECTION 17. PREEMPTION. <--
4 THIS ACT SHALL PREEMPT AND SUPERSEDE ANY ORDINANCE RELATING
5 TO THE LICENSURE OR REGULATION OF MASSAGE THERAPISTS BY A
6 POLITICAL SUBDIVISION IN EFFECT ON THE EFFECTIVE DATE OF THIS
7 ACT.
8 Section 49. Appropriation and repayment.
9 (a) Appropriation.--The sum of $85,000, or as much thereof
10 as may be necessary, is hereby appropriated from the
11 Professional Licensure Augmentation Account to the department
12 for the payment of costs associated with processing licenses and
13 renewing licenses, for the operation of the board and for other
14 costs associated with this act.
15 (b) Repayment.--The appropriation shall be repaid by the
16 board to the account within three years of the beginning of
17 issuance of licenses by the board.
18 Section 50. Regulations.
19 The board shall promulgate regulations to carry out this act.
20 Publication of the final-form regulations under this section
21 shall take place within 18 months of the effective date of this
22 section. The board shall report, within 60 days of the effective
23 date of this section, and every 30 days thereafter, on the
24 status of the regulations to the Consumer Protection and
25 Professional Licensure Committee of the Senate and the
26 Professional Licensure Committee of the House of
27 Representatives.
28 Section 51. Effective date.
29 This act shall take effect as follows:
30 (1) The following provisions shall take effect
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1 immediately:
2 (i) Section SECTIONS 4, 5 AND 50. <--
3 (ii) This section.
4 (2) The remainder of this act shall take effect in two
5 years.
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