PRIOR PRINTER'S NOS. 3749, 3929 PRINTER'S NO. 3961
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, K. SMITH AND CALTAGIRONE, MAY 13, 2008
AS RE-REPORTED FROM COMMITTEE ON APPROPRIATIONS, HOUSE OF REPRESENTATIVES, AS AMENDED, JUNE 17, 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, 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
1 health, safety and welfare interests. 2 (3) Regulation is necessary to set educational standards 3 within the profession and to protect the public from 4 unqualified massage therapy practitioners and unscrupulous 5 individuals. 6 (4) Consumer protection with respect to both health and 7 economic matters will be afforded the public through the 8 regulation and associated legal remedies provided for in this 9 act. 10 Section 3. Definitions. 11 The following words and phrases when used in this act shall 12 have the meanings given to them in this section unless the 13 context clearly indicates otherwise: 14 "Account." The Professional Licensure Augmentation Account. 15 "Applicant." An individual who applies for a license. 16 "Board." The State Board of Massage Therapy. 17 "Bureau." The Bureau of Professional and Occupational 18 Affairs. 19 "Commissioner." The Commissioner of Professional and 20 Occupational Affairs. 21 "Convicted." Includes a finding or verdict of guilt, an 22 admission of guilt, a plea of nolo contendere or a sentence of 23 probation without verdict, disposition in lieu of trial or an 24 accelerated rehabilitative disposition in the disposition of 25 felony charges. 26 "Department." The Department of State of the Commonwealth. 27 "License." A license to practice massage therapy under this 28 act. 29 "Licensee." An individual who holds a license to practice 30 massage therapy. 20080H2499B3961 - 2 -
1 "Massage therapist." An individual licensed by the board to 2 practice massage therapy. 3 "Massage therapy." The application of a system of structured 4 touch, pressure, movement, holding and treatment of the soft 5 tissue manifestations of the human body in which the primary 6 intent is to enhance the health and well-being of the client 7 without limitation, except as provided in this act. The term 8 includes the external application of water, heat, cold, 9 lubricants or other topical preparations, lymphatic techniques, 10 myofascial release techniques and the use of electro-mechanical 11 devices which mimic or enhance the action of the massage 12 techniques. The term does not include the diagnosis or treatment 13 of impairment, illness, disease or disability, a medical 14 procedure, a chiropractic manipulation/adjustment, physical 15 therapy mobilization/manual therapy, therapeutic exercise, 16 electrical stimulation, ultrasound or prescription of medicines 17 for which a license to practice medicine, chiropractic, physical 18 therapy, occupational therapy, podiatry or other practice of the 19 healing arts is required. 20 "Reflexology." The physical act of using thumbs, fingers and 21 hand techniques to apply specific pressure on the reflex area in 22 the feet, hands or ears of the client. 23 "Sexual behavior." Conduct which is or is intended to be 24 sexual in nature or which may be construed by a reasonable 25 person as sexual in nature. 26 "Sexual exploitation." Sexual behavior with a current client 27 which uses trust, knowledge, emotions or influence derived from 28 the professional relationship. 29 "Sexual offense." An offense under any provision of 18 30 Pa.C.S. (relating to crimes and offenses). 20080H2499B3961 - 3 -
1 Section 4. Board. 2 (a) Establishment.--There is established the State Board of 3 Massage Therapy, an administrative board within the department. 4 The board shall consist of nine members who are citizens of the 5 United States and who have been residents of this Commonwealth 6 for at least a two-year period prior to the effective date of 7 this section. The board shall be composed of the following 8 individuals: 9 (1) Two members who are members of the public. 10 (2) Five members who meet the educational and experience 11 qualifications for licensure under section 6. No more than 12 one member under this paragraph shall be an owner of a school 13 that provides instruction in massage therapy. 14 (3) The Secretary of Health or a designee. 15 (4) The commissioner or a designee. 16 (b) Term of office.--Except as provided in subsection (c), 17 the members of the board shall serve for four-year terms and 18 shall be appointed by the Governor by and with the advice and 19 consent of a majority of the members elected to the Senate. 20 (c) Initial appointments.--Within 90 days of the effective 21 date of this section, the Governor shall nominate two 22 professional members to serve four-year terms, one public member 23 and one professional member to serve three-year terms, one 24 public member and one professional member to serve two-year 25 terms and one professional member to serve a one-year term. A 26 professional member initially appointed to the board pursuant to 27 this act need not be licensed at the time of appointment but at 28 the time of appointment must have satisfied the eligibility 29 requirements for licensure and must have practiced massage 30 therapy for five consecutive years or more immediately preceding 20080H2499B3961 - 4 -
1 the appointments. 2 (d) Continuation in office.--Each board member shall 3 continue in office until a successor is appointed and qualified 4 but no longer than six months after the expiration of the term. 5 If a board member shall die, resign or otherwise become 6 disqualified during the term of office, a successor shall be 7 appointed in the same way and with the same qualifications as 8 set forth in this section and shall hold office for the 9 unexpired portion of the term. 10 (e) Limit on terms.--No board member shall be eligible for 11 reappointment to serve more than two consecutive four-year 12 terms. 13 (f) Forfeiture of membership.--A board member who fails to 14 attend three consecutive meetings without permission of the 15 commissioner shall forfeit the member's seat unless the 16 commissioner, upon written request from the member, finds that 17 the member should be excused from a meeting because of illness 18 or the death of a family member. 19 (g) Compensation.--A member of the board, except the 20 commissioner, shall receive per diem compensation at the rate of 21 $60 when actually attending to the work of the board. Members 22 shall also receive reasonable traveling, hotel and other 23 necessary expenses incurred in the performance of their duties 24 in accordance with regulations. 25 (h) Forfeiture for nonattendance.--A public member who fails 26 to attend two consecutive statutorily mandated training seminars 27 in accordance with section 813(e) of the act of April 9, 1929 28 (P.L.177, No.175), known as The Administrative Code of 1929, 29 shall forfeit the public member's seat unless the commissioner, 30 upon written request from the public member, finds that the 20080H2499B3961 - 5 -
1 public member should be excused from a meeting because of 2 illness or the death of a family member. 3 (i) Quorum.--A majority of the members of the board shall 4 constitute a quorum for the purposes of conducting the business 5 of the board. Except for temporary and automatic suspensions 6 under section 10(d), a member may not be counted as part of a 7 quorum or vote on any issue unless the member is physically in 8 attendance at the meeting. 9 (j) Chairperson.--The board shall annually select a 10 chairperson from among its members. 11 (k) Meetings.--The board shall meet at least four times a 12 year in Harrisburg and at other times and places as the board 13 shall determine is necessary to conduct board business. 14 (l) Notice.--Reasonable notice of all meetings shall be 15 given in conformity with 65 Pa.C.S. Ch. 7 (relating to open 16 meetings). 17 (m) Operating procedures.--The board shall meet within 30 18 days after the appointment of its initial members and shall 19 institute operating procedures and an application form for 20 licensing massage therapists. It shall be the responsibility of 21 the board to educate the public as to the requirements of 22 licensing in order to hold oneself out or to practice as a 23 licensed massage therapist within this Commonwealth. 24 Section 5. Powers and duties of board. 25 The board has the following powers and duties: 26 (1) To pass upon the qualifications and fitness of 27 applicants for licenses and reciprocal licenses and to 28 promulgate regulations requiring applicants to pass 29 examinations relating to qualifications as a prerequisite to 30 the issuance of a license. 20080H2499B3961 - 6 -
1 (2) To promulgate regulations not inconsistent with this 2 act and only as necessary to carry out this act. 3 (3) To examine, deny, approve, issue, revoke, suspend or 4 renew licenses of massage therapists under this act and to 5 conduct hearings in connection with those powers and duties. 6 (4) To conduct hearings upon complaints concerning 7 violations of this act and the regulations promulgated under 8 this act and to seek the prosecution and enjoinder of 9 violations. 10 (5) To expend money necessary to the proper carrying out 11 of its assigned duties. 12 (6) To submit annually a report to the Consumer 13 Protection and Professional Licensure Committee of the Senate 14 and the Professional Licensure Committee of the House of 15 Representatives containing a description of the types of 16 complaints received, status of the cases, board action which 17 has been taken and length of time from the initial complaint 18 to final board resolution. 19 (7) To submit annually to the Appropriations Committee 20 of the Senate and the Appropriations Committee of the House 21 of Representatives, within 15 days after the Governor has 22 submitted a budget to the General Assembly, a copy of the 23 budget request for the upcoming fiscal year which the board 24 previously submitted to the department. 25 (8) To establish standards of eligibility for license 26 renewal. These standards shall include, but not be limited 27 to, the demonstration of satisfactory completion of a minimum 28 of 24 hours of continuing education related to the practice 29 of massage therapy in accordance with board regulations. No 30 credit may be given for courses in office management or 20080H2499B3961 - 7 -
1 practice building. The board may waive all or part of the 2 continuing education requirement to a licensee who shows to 3 the satisfaction of the board that the licensee was unable to 4 complete the requirement due to illness, emergency or 5 hardship. 6 Section 6. Qualification for licensure. 7 (a) Applicants.--An applicant shall be considered to be 8 qualified for a license if the applicant submits proof 9 satisfactory to the board of all of the following: 10 (1) The applicant is of good moral character. 11 (2) The applicant has a high school diploma or its 12 equivalent. 13 (3) The applicant has completed a massage program of at 14 least 600 hours of in-class, postsecondary education 15 instruction approved by the Department of Education or by the 16 board. The program under this paragraph must include training 17 in the human immunodeficiency virus and related risks and 18 training in cardiopulmonary resuscitation. 19 (4) The applicant has passed an examination under 20 section 8. 21 (5) The applicant has paid a fee as established by the 22 board by regulation. 23 (6) The applicant is not addicted to alcohol, narcotics 24 or other habit-forming drugs. 25 (7) The applicant has not been convicted of a felony 26 under the act of April 14, 1972 (P.L.233, No.64), known as 27 The Controlled Substance, Drug, Device and Cosmetic Act, or 28 of an offense under the laws of another jurisdiction which, 29 if committed in this Commonwealth, would be a felony under 30 The Controlled Substance, Drug, Device and Cosmetic Act, 20080H2499B3961 - 8 -
1 unless the following apply: 2 (i) At least ten years have elapsed from the date of 3 conviction. 4 (ii) The applicant satisfactorily demonstrates to 5 the board that the applicant has made significant 6 progress in personal rehabilitation since the conviction 7 and that licensure of the applicant should not be 8 expected to create a substantial risk of harm to the 9 health and safety of the applicant's clients or the 10 public or a substantial risk of further criminal 11 violations. 12 (iii) The applicant otherwise satisfies the 13 qualifications required under this act. 14 (b) Existing practitioners.--The board shall issue a license 15 to an applicant who, on the effective date of this subsection, 16 complies with all of the following paragraphs: 17 (1) Is an active professional practitioner of massage 18 therapy. 19 (2) Meets the qualifications described in subsection 20 (a)(1), (2), (5), (6) and (7). 21 (3) Complies with one of the following subparagraphs: 22 (i) Has: <-- 23 (A) been in active, continuous practice for at 24 (I) HAS BEEN IN ACTIVE, CONTINUOUS PRACTICE FOR AT <-- 25 least five years immediately preceding the effective date 26 of this section; and. <-- 27 (B) completed 150 hours of instruction in <-- 28 massage, including continuing education and related 29 subjects. 30 (ii) Has passed an examination administered by a 20080H2499B3961 - 9 -
1 certifying agency which is approved by the National 2 Commission of Certifying Agencies and is in good standing 3 with the certifying agency or with the board. 4 (II) HAS PASSED AN EXAMINATION THAT IS PART OF A <-- 5 CERTIFICATION PROGRAM ACCREDITED BY THE NATIONAL 6 COMMISSION OF CERTIFYING AGENCIES. 7 (iii) Has completed 500 hours of instruction in 8 massage and related subjects from a massage therapy 9 program approved by the Department of Education or by the 10 board. 11 (IV) HAS: <-- 12 (A) PASSED THE NATIONAL EXAMINATION FOR STATE 13 LICENSURE (NESL) OFFERED THROUGH THE NATIONAL 14 CERTIFICATION BOARD FOR THERAPEUTIC MASSAGE AND 15 BODYWORK (NCBTMB); AND 16 (B) COMPLETED 100 HOURS OF INSTRUCTION IN 17 MASSAGE AND RELATED SUBJECTS. 18 (V) HAS: 19 (A) PASSED THE MASSAGE AND BODYWORK LICENSURE 20 EXAMINATION (MBLEX) OFFERED THROUGH THE FEDERATION OF 21 STATE MASSAGE THERAPY BOARDS (FSMTB); AND 22 (B) COMPLETED 100 HOURS OF INSTRUCTION IN 23 MASSAGE AND RELATED SUBJECTS. 24 (c) Temporary practice permit.-- 25 (1) The board may issue a temporary practice permit to 26 an applicant in order to permit the applicant to practice 27 massage therapy during the six-month period after completion 28 of the applicant's education program. 29 (2) The temporary practice permit issued under paragraph 30 (1) shall be nonrenewable and shall expire on the earlier of: 20080H2499B3961 - 10 -
1 (i) six months from the date of issuance; or 2 (ii) the date the applicant fails the licensing 3 examination. 4 (d) Transferability.--A license and a temporary practice 5 permit are not transferable. 6 Section 7. Biennial renewal of license. 7 (a) Duration of license.--A license shall be valid for two 8 years. The expiration date shall be established by regulation of 9 the board. Application for renewal of a license shall be 10 forwarded to an individual holding a current license prior to 11 the expiration date of the current renewal. 12 (b) Procedure.--To renew a license, a licensee must do all 13 of the following: 14 (1) File a renewal application with the board which 15 includes the following: 16 (i) Current certification to administer 17 cardiopulmonary resuscitation. 18 (ii) Certification of successful completion of a 19 minimum of 24 hours of continuing education in the field 20 of massage therapy during the immediately preceding two 21 years. Certification of continuing education credit hours 22 submitted by the massage therapist shall be properly 23 signed as being correct and true. 24 (2) Pay a fee established by regulation of the board. 25 (c) Inactive status.--Any person licensed under this act may 26 request an application for inactive status. The application may 27 be completed and returned to the board; upon receipt of each 28 application, the applicant shall be maintained on inactive 29 status without fee and shall be entitled to apply for an active 30 license at any time. An application to reactivate a license 20080H2499B3961 - 11 -
1 which has been placed on inactive status for less than five 2 years shall be accompanied by a verification of nonpractice, the 3 renewal fee and documentation evidencing the satisfactory 4 completion of the continuing education requirement for the 5 preceding biennial period. Any person who requests an active 6 status license who has been on inactive status for a period of 7 five consecutive years or longer shall, prior to receiving an 8 active license, satisfy the requirements of the board's 9 regulations for ensuring continued competence and remit the 10 required fee. A person shall not be denied active status as a 11 result of any increased educational requirements for licensure 12 since the time he or she received his or her original license. 13 (d) Reporting of multiple licensure.--A licensee who is 14 licensed to practice massage therapy in another jurisdiction 15 shall report this information to the board on the license 16 renewal application. Any disciplinary action taken in another 17 jurisdiction shall be reported to the board on the license 18 renewal application or within 90 days of final disposition, 19 whichever is sooner. Multiple licensure shall be noted by the 20 board on the licensee's record, and the other licensing 21 jurisdiction shall be notified by the board of any disciplinary 22 actions taken against the licensee in this Commonwealth. 23 Section 8. Examinations. 24 The board shall contract with a professional testing 25 organization for the examination of qualified applicants for 26 licensure. The board shall approve the examination before it is 27 administered. Any examination approved by the board must meet 28 generally recognized psychometric principles and standards. All 29 written, oral and practical examinations shall be prepared and 30 administered by a qualified and approved professional testing 20080H2499B3961 - 12 -
1 organization in the manner prescribed for written examinations 2 by section 812.1 of the act of April 9, 1929 (P.L.177, No.175), 3 known as The Administrative Code of 1929. 4 Section 9. Reciprocity. 5 The board has the power to grant a reciprocal license to an 6 applicant who is licensed or certified as a massage therapist or 7 similar practice in another state and has demonstrated 8 qualifications which equal or exceed those required under this 9 act in the determination of the board. No license shall be 10 granted under this section to an applicant unless the state in 11 which the applicant is licensed affords reciprocal treatment to 12 individuals who are residents of this Commonwealth and who are 13 licensed under this act. 14 Section 10. Refusal, suspension and revocation of licenses. 15 (a) Grounds.--The board may refuse, suspend, revoke, limit 16 or restrict a license or discipline a licensee for any of the 17 following: 18 (1) Being convicted under Federal law, under the law of 19 any state or under the law of another jurisdiction of an 20 offense of moral turpitude or of an offense which, if 21 committed in this Commonwealth, would constitute a sexual 22 offense or a felony. 23 (2) Being found to have engaged in immoral or 24 unprofessional conduct. In proceedings based on this 25 paragraph, actual injury to the client need not be 26 established. As used in this paragraph, the term 27 "unprofessional conduct" includes: 28 (i) a departure from or failure to conform to the 29 standards of acceptable and prevailing practice; and 30 (ii) sexual exploitation of a client. 20080H2499B3961 - 13 -
1 (3) Violating standards of professional practice or 2 conduct as established by board regulation. 3 (4) Presenting false credentials or documents or making 4 a false statement of fact in support of the individual's 5 application for a license. 6 (5) Submitting a false or deceptive license renewal to 7 the board. 8 (6) Having a license suspended, revoked or refused or 9 receiving other disciplinary action by the proper licensing 10 authority of another jurisdiction. 11 (7) Violating a regulation promulgated by the board or 12 violating an order of the board previously entered in a 13 disciplinary proceeding. 14 (8) Incompetence, negligence or misconduct in carrying 15 out the practice of massage therapy. 16 (9) Practicing beyond the licensee's defined scope of 17 practice. 18 (10) Knowingly aiding, assisting, hiring or advising 19 someone in the unlawful practice of massage therapy. 20 (11) Being unable to practice with reasonable skill and 21 safety by reason of illness; drunkenness; use of drugs, 22 narcotics, chemicals or any other type of material; or as a 23 result of any mental or physical condition. In enforcing this 24 paragraph, the board, upon probable cause, has authority to 25 compel a licensee to submit to a mental or physical 26 examination by a physician approved by the board. Failure of 27 a licensee to submit to an examination when directed by the 28 board, unless the failure is due to circumstances beyond the 29 licensee's control, may result in a default and final order 30 entered against the licensee without the taking of testimony 20080H2499B3961 - 14 -
1 or presentation of evidence. A licensee affected under this 2 paragraph shall be afforded an opportunity to demonstrate 3 that the licensee can resume competent practice with 4 reasonable skill and safety. 5 (b) Board action.--If the board finds that the license or 6 application for license may be refused, revoked, restricted or 7 suspended under the terms of subsection (a), the board may do 8 any of the following: 9 (1) Deny the application for a license. 10 (2) Administer a public reprimand. 11 (3) Revoke, suspend, limit or otherwise restrict a 12 license. 13 (4) Require a licensee to submit to the care, counseling 14 or treatment of a physician. 15 (5) Suspend enforcement of its findings and place a 16 licensee on probation with the right to vacate the 17 probationary order for noncompliance. 18 (6) Restore a suspended license and impose any 19 disciplinary or corrective measure which it might originally 20 have imposed. 21 (c) Administrative Agency Law.--Actions of the board under 22 subsections (a) and (b) are subject to 2 Pa.C.S. Ch. 5 Subch. A 23 (relating to practice and procedure of Commonwealth agencies) 24 and Ch. 7 Subch. A (relating to judicial review of Commonwealth 25 agency action). 26 (d) Temporary and automatic suspension.--A license issued 27 under this act shall be temporarily suspended under 28 circumstances determined by the board to be an immediate and 29 clear danger to the public health and safety. The board shall 30 issue an order to that effect without a hearing, but upon due 20080H2499B3961 - 15 -
1 notice, to the licensee concerned at his or her last known 2 address, which shall include a written statement of all 3 allegations against the licensee. The provisions of subsection 4 (c) shall not apply to temporary suspension. The board shall 5 thereupon commence formal action to suspend, revoke or restrict 6 the license of the person concerned as otherwise provided for in 7 this act. All actions shall be taken promptly and without delay. 8 Within 30 days following the issuance of an order temporarily 9 suspending a license, the board shall conduct or cause to be 10 conducted a preliminary hearing to determine that there is a 11 prima facie case supporting the suspension. The licensee whose 12 license has been temporarily suspended may be present at the 13 preliminary hearing and may be represented by counsel, cross- 14 examine witnesses, inspect physical evidence, call witnesses, 15 offer evidence and testimony and make a record of the 16 proceedings. If it is determined that there is not a prima facie 17 case, the suspended license shall be immediately restored. The 18 temporary suspension shall remain in effect until vacated by the 19 board, but in no event longer than 180 days. 20 Section 11. Reinstatement of license. 21 Unless ordered to do so by a court of competent jurisdiction, 22 the board shall not reinstate the license of an individual which 23 has been revoked. An individual whose license has been revoked 24 may reapply for a license after a period of at least five years, 25 and must meet all of the licensing requirements of this act. 26 Section 12. Impaired professional. 27 (a) Appointment of professional consultant.--The board, with 28 the approval of the commissioner, shall appoint and fix the 29 compensation of a professional consultant who is a licensee of 30 the board, or such other professional as the board may determine 20080H2499B3961 - 16 -
1 with education and experience in the identification, treatment 2 and rehabilitation of persons with physical or mental 3 impairments. Such consultant shall be accountable to the board 4 and shall act as a liaison between the board and treatment 5 programs, such as alcohol and drug treatment programs licensed 6 by the Department of Health, psychological counseling and 7 impaired professional support groups, which are approved by the 8 board and which provide services to licensees under this act. 9 (b) Subsequent action by board.--The board may defer and 10 ultimately dismiss any of the types of corrective action set 11 forth in this act for an impaired professional so long as the 12 professional is progressing satisfactorily in an approved 13 treatment program, provided that the provisions of this 14 subsection shall not apply to a professional convicted of a 15 felonious act prohibited by the act of April 14, 1972 (P.L.233, 16 No.64), known as The Controlled Substance, Drug, Device and 17 Cosmetic Act, or convicted of, pleaded guilty to or entered a 18 plea of nolo contendere to a felony relating to a controlled 19 substance in a court of law of the United States or any other 20 state, territory or country. An approved program provider shall, 21 upon request, disclose to the consultant such information in its 22 possession regarding any impaired professional in treatment 23 which the program provider is not prohibited from disclosing by 24 an act of the United States, this Commonwealth or any other 25 state. Such requirement of disclosure by an approved program 26 provider shall apply in the case of impaired professionals who 27 enter an agreement in accordance with this section, impaired 28 professionals who are the subject of a board investigation or 29 disciplinary proceeding and impaired professionals who 30 voluntarily enter a treatment program other than under the 20080H2499B3961 - 17 -
1 provisions of this section but who fail to complete the program 2 successfully or to adhere to an aftercare plan developed by the 3 program provider. 4 (c) Agreement.--An impaired professional who enrolls in an 5 approved treatment program shall enter into an agreement with 6 the board under which the professional's license shall be 7 suspended or revoked, but enforcement of the suspension or 8 revocation may be stayed for the length of time the professional 9 remains in the program and makes satisfactory progress, complies 10 with the terms of the agreement and adheres to any limitations 11 on his or her practice imposed by the board to protect the 12 public. Failure to enter into such an agreement shall disqualify 13 the professional from the impaired professional program and 14 shall activate an immediate investigation and disciplinary 15 proceeding by the board. 16 (d) Report by provider.--If, in the opinion of the 17 consultant after consultation with the provider, an impaired 18 professional who is enrolled in an approved treatment program 19 has not progressed satisfactorily, the consultant shall disclose 20 to the board all information in his or her possession relevant 21 to the issue of impairment regarding said professional, and the 22 board shall institute proceedings to determine if the stay of 23 the enforcement of the suspension or revocation of the impaired 24 professional's license shall be vacated. 25 (e) Immunity.--An approved program provider who makes a 26 disclosure pursuant to this section shall not be subject to 27 civil liability for such disclosure or its consequences. 28 (f) Reports by others.--Any hospital or health care 29 facility, peer or colleague who has substantial evidence that a 30 professional has an active addictive disease for which the 20080H2499B3961 - 18 -
1 professional is not receiving treatment, is diverting a 2 controlled substance or is mentally or physically incompetent to 3 carry out the duties of his or her license shall make or cause 4 to be made a report to the board, provided that any person or 5 facility who acts in a treatment capacity to an impaired 6 professional in an approved treatment program is exempt from the 7 mandatory reporting requirement of this subsection. Any person 8 or facility who reports pursuant to this section in good faith 9 and without malice shall be immune from any civil or criminal 10 liability arising from such report. Failure to provide such 11 report within a reasonable time from receipt of knowledge of 12 impairment shall subject the person or facility to a fine of not 13 more than $1,000. The board shall levy this penalty only after 14 affording the accused party the opportunity for a hearing, as 15 provided under 2 Pa.C.S. (relating to administrative law and 16 procedure). 17 Section 13. Records and fees. 18 (a) Records.--A record of all licensees shall be kept in the 19 office of the board and shall be open to public inspection and 20 copying upon payment of a reasonable fee for copying the record. 21 (b) Fees.-- 22 (1) All fees required under this act shall be fixed by 23 the board by regulation. If the revenue raised by fees, fines 24 and civil penalties imposed under this act are not sufficient 25 to meet expenditures over a two-year period, the board shall 26 increase those fees by regulation so that the projected 27 revenues will meet or exceed projected expenditures. 28 (2) If the bureau determines that the fees established 29 by the board under paragraph (1) are inadequate to meet the 30 minimum enforcement efforts required by this act, the bureau, 20080H2499B3961 - 19 -
1 after consultation with the board, shall increase the fees by 2 regulation in an amount so that adequate revenues are raised 3 to meet the required enforcement effort. 4 Section 14. Other professions. 5 Nothing in this act shall be construed as preventing, 6 restricting or requiring licensure of any of the following 7 activities: 8 (1) The practice of a profession by an individual who is 9 licensed, certified or registered by a Commonwealth agency 10 under other law and who is performing services or advertising 11 within the authorized scope of practice. 12 (2) The practice of massage therapy by an individual 13 employed by the Federal Government while the individual is 14 engaged in the performance of duties under Federal law. 15 (3) A student enrolled in a massage therapy education 16 program who is: 17 (i) conducting massage therapy activities under the 18 supervision of: 19 (A) a licensee; or 20 (B) instructors or supervisors who meet the 21 licensing criteria of the Department of Education or 22 the board; and 23 (ii) enrolled in a school approved by the Department 24 of Education or by the board. 25 (4) The practice by an individual while performing 26 reflexology. 27 (5) 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 and to suggest new 30 possibilities of movement, while engaged within the scope of 20080H2499B3961 - 20 -
1 practice of a profession with established standards and 2 ethics. 3 (6) The practice of an individual who uses touch to 4 affect the energy systems, accupoints, Qi meridians or 5 channels of energy of the human body while engaged within the 6 scope of practice of a profession with established standards 7 and ethics. 8 Section 15. Unlawful practice. 9 (a) General rule.--Except as set forth in section 14(1) and 10 (2), an individual may not practice massage therapy or hold 11 oneself out as a massage therapist unless licensed by the board. 12 (b) Title.--An individual who holds a license or is 13 maintained on inactive status may use the title "Licensed 14 Massage Therapist" and the abbreviation "L.M.T." No other 15 individual may use the title "Licensed Massage Therapist" or the 16 title "Massage Therapist" or hold oneself out to others as a 17 massage therapist. This subsection includes advertising as a 18 massage therapist and adopting or using any title or 19 description, including massage therapist, massage practitioner, 20 masseur, masseuse, myotherapist or a derivative of those terms 21 and their related abbreviations, which implies directly or 22 indirectly that massage services are being provided. 23 (c) Employment.--An individual, corporation, partnership, 24 firm or other entity may not employ an individual in massage 25 therapy unless the individual is licensed by the board. 26 (d) Terminology.--Except as set forth in section 14(1), a 27 business entity may not utilize in connection with a business 28 name or activity the words, "massage," "massage therapist," 29 "massage practitioner," "masseur," "masseuse" or "myotherapist," 30 or any derivative of these terms and their related 20080H2499B3961 - 21 -
1 abbreviations, which imply directly or indirectly that massage 2 therapy services are being provided, unless the services of the 3 business are provided by licensees. 4 (e) Injunction.--Unlawful practice may be enjoined by the 5 courts upon petition of the commissioner or the board. In a 6 proceeding under this section, it shall not be necessary to show 7 that an individual has been injured. Procedure in such cases 8 shall be the same as in any other injunction suit. 9 (f) Remedy cumulative.--The injunctive remedy provided in 10 this section shall be in addition to any other civil or criminal 11 prosecution and punishment. 12 Section 16. Violation of act. 13 (a) General rule.--Notwithstanding any law to the contrary, 14 a person that violates a provision of this act or a regulation 15 of the board commits a misdemeanor of the third degree and 16 shall, upon conviction, be sentenced to pay a fine of not more 17 than $1,000 or to imprisonment for not more than six months for 18 the first violation and to pay a fine of not more than $2,000 or 19 to imprisonment for not less than six months or more than one 20 year, or both, for each subsequent violation. 21 (b) Civil penalty.--In addition to any other civil remedy or 22 criminal penalty provided for in this act, the board, by a vote 23 of the majority of the maximum number of the authorized 24 membership of the board or by a vote of the majority of the 25 qualified and confirmed membership or a minimum of five members, 26 whichever is greater, may levy a civil penalty of up to $10,000 27 on any of the following: 28 (1) A massage therapist who violates a provision of this 29 act. 30 (2) A person that employs a massage therapist in 20080H2499B3961 - 22 -
1 violation of this act. 2 (3) An individual who holds himself out as a licensee 3 without being properly licensed as provided in this act. 4 (4) The responsible officers or employees of a 5 corporation, partnership, firm or other entity that violates 6 a provision of this act. 7 (c) Assessment of costs of investigation.--The board may 8 assess against a respondent determined to be in violation of the 9 disciplinary provisions administered by the board in a 10 disciplinary proceeding pending before the board for final 11 determination, as part of the sanction, the costs of 12 investigation underlying that disciplinary action. The cost of 13 investigation shall not include any associated legal fees or any 14 cost of prosecution. 15 (d) Administrative Agency Law.--Action of the board under 16 subsection (b) is subject to 2 Pa.C.S. Ch. 5 Subch. A (relating 17 to practice and procedure of Commonwealth agencies) and Ch. 7 18 Subch. A (relating to judicial review of Commonwealth agency 19 action). 20 Section 17. Preemption. 21 This act shall preempt and supersede any ordinance relating 22 to the licensure or regulation of massage therapists by a 23 political subdivision in effect on the effective date of this 24 act. 25 Section 49. Appropriation and repayment FUNDING. <-- 26 (a) Appropriation.--The sum of $85,000, or as much thereof <-- 27 as may be necessary, is hereby appropriated from the 28 Professional Licensure Augmentation Account to the department 29 for the payment of costs associated with processing licenses and 30 renewing licenses, for the operation of the board and for other 20080H2499B3961 - 23 -
1 costs associated with this act. 2 (b) Repayment.--The appropriation shall be repaid by the 3 board to the account within three years of the beginning of 4 issuance of licenses by the board. 5 FUNDS NECESSARY FOR THE PAYMENT OF COSTS ASSOCIATED WITH <-- 6 PROCESSING LICENSES AND RENEWING LICENSES, FOR THE OPERATION OF 7 THE BOARD AND FOR OTHER COSTS ASSOCIATED WITH THIS ACT SHALL BE 8 TRANSFERRED FROM THE PROFESSIONAL LICENSURE AUGMENTATION ACCOUNT 9 TO THE DEPARTMENT. 10 Section 50. Regulations. 11 The board shall promulgate regulations to carry out this act. 12 Publication of the final-form regulations under this section 13 shall take place within 18 months of the effective date of this 14 section. The board shall report, within 60 days of the effective 15 date of this section, and every 30 days thereafter, on the 16 status of the regulations to the Consumer Protection and 17 Professional Licensure Committee of the Senate and the 18 Professional Licensure Committee of the House of 19 Representatives. 20 Section 51. Effective date. 21 This act shall take effect as follows: 22 (1) The following provisions shall take effect 23 immediately: 24 (i) Sections 4, 5 and 50. 25 (ii) This section. 26 (2) The remainder of this act shall take effect in two 27 years. E9L63RLE/20080H2499B3961 - 24 -