SENATE AMENDED
        PRIOR PRINTER'S NOS. 3749, 3929, 3961,        PRINTER'S NO. 4523
        4343

THE GENERAL ASSEMBLY OF PENNSYLVANIA


HOUSE BILL

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, CALTAGIRONE AND
           MARSHALL, MAY 13, 2008

        SENATOR ARMSTRONG, APPROPRIATIONS, IN SENATE, RE-REPORTED AS
           AMENDED, OCTOBER 7, 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.

     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.


     1         (2)  Reasonable regulation is in furtherance of public
     2     health, safety and welfare interests.
     3         (3)  Regulation is necessary to set educational standards
     4     within the profession and to protect the public from
     5     unqualified massage therapy practitioners and unscrupulous
     6     individuals.
     7         (4)  Consumer protection with respect to both health and
     8     economic matters will be afforded the public through the
     9     regulation and associated legal remedies provided for in this
    10     act.
    11  Section 3 2.  Definitions.                                        <--
    12     The following words and phrases when used in this act shall
    13  have the meanings given to them in this section unless the
    14  context clearly indicates otherwise:
    15     "Account."  The Professional Licensure Augmentation Account.
    16     "Applicant."  An individual who applies for a license.
    17     "Board."  The State Board of Massage Therapy.
    18     "Bureau."  The Bureau of Professional and Occupational
    19  Affairs.
    20     "Commissioner."  The Commissioner of Professional and
    21  Occupational Affairs.
    22     "Convicted."  Includes a finding or verdict of guilt, an       <--
    23  admission of guilt, a plea of nolo contendere or a sentence of
    24  probation without verdict, disposition in lieu of trial or an
    25  accelerated rehabilitative disposition in the disposition of
    26  felony charges.
    27     "CONVICTION."  A JUDGMENT OF GUILT, AN ADMISSION OF GUILT OR   <--
    28  A PLEA OF NOLO CONTENDERE.
    29     "Department."  The Department of State of the Commonwealth.
    30     "HEALING ARTS."  THE SCIENCE AND SKILL OF DIAGNOSIS AND        <--
    20080H2499B4523                  - 2 -     

     1  TREATMENT IN ANY MANNER WHATSOEVER OF DISEASE OR ANY AILMENT OF
     2  THE HUMAN BODY.
     3     "License."  A license to practice massage therapy under this
     4  act.
     5     "Licensee."  An individual who holds a license to practice
     6  massage therapy.
     7     "Massage therapist."  An individual licensed by the board to
     8  practice massage therapy.
     9     "Massage therapy."  The application of a system of structured
    10  touch, pressure, movement, holding and treatment of the soft
    11  tissue manifestations of the human body in which the primary
    12  intent is to enhance the health and well-being of the client
    13  without limitation, except as provided in this act. The term
    14  includes the external application of water, heat, cold,
    15  lubricants or other topical preparations, lymphatic techniques,
    16  myofascial release techniques and the use of electro-mechanical
    17  devices which mimic or enhance the action of the massage
    18  techniques. The term does not include the diagnosis or treatment
    19  of impairment, illness, disease or disability, a medical
    20  procedure, a chiropractic manipulation/adjustment MANIPULATION -  <--
    21  ADJUSTMENT, physical therapy mobilization/manual MOBILIZATION -   <--
    22  MANUAL therapy, therapeutic exercise, electrical stimulation,
    23  ultrasound or prescription of medicines for which a license to
    24  practice medicine, chiropractic, physical therapy, occupational
    25  therapy, podiatry or other practice of the healing arts is
    26  required.
    27     "Reflexology."  The physical act of using thumbs, fingers and
    28  hand techniques to apply specific pressure on the reflex area in
    29  the feet, hands or ears of the client.
    30     "Sexual behavior."  Conduct which is or is intended to be      <--
    20080H2499B4523                  - 3 -     

     1  sexual in nature or which may be construed by a reasonable
     2  person as sexual in nature.
     3     "Sexual exploitation."  Sexual behavior with a current client
     4  which uses trust, knowledge, emotions or influence derived from
     5  the professional relationship.
     6     "Sexual offense."  An offense under any provision of 18
     7  Pa.C.S. (relating to crimes and offenses).
     8  Section 4 3.  Board.                                              <--
     9     (a)  Establishment.--There is established the State Board of
    10  Massage Therapy, an administrative board within the department.
    11  The board shall consist of nine 11 members who are citizens of    <--
    12  the United States and who have been residents of this
    13  Commonwealth for at least a two-year FIVE-YEAR period prior to    <--
    14  the effective date of this section. The board shall be composed
    15  of the following individuals:
    16         (1)  Two members who are members of the public.
    17         (2)  Five SIX members who meet the educational and         <--
    18     experience qualifications for licensure under section 6 5. No  <--
    19     more than one member under this paragraph shall be an owner
    20     of a school that provides instruction in massage therapy.
    21         (3)  The Secretary of Health or a designee.
    22         (4)  THE ATTORNEY GENERAL OR A DESIGNEE.                   <--
    23         (4) (5)  The commissioner or a designee.                   <--
    24     (b)  Term of office.--Except as provided in subsection (c),
    25  the members of the board shall serve for four-year terms and
    26  shall be appointed by the Governor by and with the advice and
    27  consent of a majority of the members elected to the Senate.
    28     (c)  Initial appointments.--Within 90 180 days of the          <--
    29  effective date of this section, the Governor shall nominate two
    30  professional members to serve four-year terms, one public member
    20080H2499B4523                  - 4 -     

     1  and one professional member to serve three-year terms, one
     2  public member and one professional member to serve two-year
     3  terms and one professional member to serve a one-year term. A
     4  professional member initially appointed to the board pursuant to
     5  this act need not be licensed at the time of appointment but at
     6  the time of appointment must have satisfied the eligibility
     7  requirements for licensure and must have practiced massage
     8  therapy for five consecutive years or more immediately preceding
     9  the appointments.
    10     (d)  Continuation in office.--Each board member shall
    11  continue in office until a successor is appointed and qualified
    12  but no longer than six months after the expiration of the term.
    13  If a board member shall die, resign or otherwise become
    14  disqualified during the term of office, a successor shall be
    15  appointed in the same way and with the same qualifications as
    16  set forth in this section and shall hold office for the
    17  unexpired portion of the term.
    18     (e)  Limit on terms.--No board member shall be eligible for
    19  reappointment to serve more than two consecutive four-year
    20  terms.
    21     (f)  Forfeiture of membership.--A board member who fails to    <--
    22  attend three consecutive meetings without permission of the
    23  commissioner shall forfeit the member's seat unless the
    24  commissioner, upon written request from the member, finds that
    25  the member should be excused from a meeting because of illness
    26  or the death of a family member.
    27     (F)  FORFEITURE OF MEMBERSHIP.--A PROFESSIONAL OR PUBLIC       <--
    28  MEMBER WHO FAILS TO ATTEND THREE MEETINGS IN 18 MONTHS SHALL
    29  FORFEIT THE MEMBER'S SEAT UNLESS THE COMMISSIONER, UPON WRITTEN
    30  REQUEST FROM THE MEMBER, FINDS THAT THE MEMBER SHOULD BE EXCUSED
    20080H2499B4523                  - 5 -     

     1  FROM A MEETING BECAUSE OF ILLNESS OR DEATH OF A FAMILY MEMBER.
     2     (g)  Compensation.--A member of the board, except the
     3  commissioner, shall receive per diem compensation at the rate of
     4  $60 when actually attending to the work of the board. Members
     5  shall also receive reasonable traveling, hotel and other
     6  necessary expenses incurred in the performance of their duties
     7  in accordance with regulations.
     8     (h)  Forfeiture for nonattendance.--A public member who fails
     9  to attend two consecutive statutorily mandated training seminars
    10  in accordance with section 813(e) of the act of April 9, 1929
    11  (P.L.177, No.175), known as The Administrative Code of 1929,
    12  shall forfeit the public member's seat unless the commissioner,
    13  upon written request from the public member, finds that the
    14  public member should be excused from a meeting because of
    15  illness or the death of a family member.
    16     (i)  Quorum.--A majority of the members of the board shall
    17  constitute a quorum for the purposes of conducting the business
    18  of the board. Except for temporary and automatic suspensions
    19  under section 10(d) 9(D), a member may not be counted as part of  <--
    20  a quorum or vote on any issue unless the member is physically in
    21  attendance at the meeting.
    22     (j)  Chairperson.--The board shall annually select a
    23  chairperson from among its members.
    24     (k)  Meetings.--The board shall meet at least four times a
    25  year in Harrisburg and at other times and places as the board
    26  shall determine is necessary to conduct board business.
    27     (l)  Notice.--Reasonable notice of all meetings shall be       <--
    28  given in conformity with 65 Pa.C.S. Ch. 7 (relating to open
    29  meetings).
    30     (m) (L)  Operating procedures.--The board shall meet within    <--
    20080H2499B4523                  - 6 -     

     1  30 days after the appointment of its initial members and shall
     2  institute operating procedures and an application form for
     3  licensing massage therapists. It shall be the responsibility of
     4  the board to educate the public as to the requirements of
     5  licensing in order to hold oneself out or to practice as a
     6  licensed massage therapist within this Commonwealth.
     7  Section 5 4.  Powers and duties of board.                         <--
     8     The board has the following powers and duties:
     9         (1)  To pass upon the qualifications and fitness of
    10     applicants for licenses and reciprocal licenses. and to        <--
    11     promulgate regulations requiring applicants to pass
    12     examinations relating to qualifications as a prerequisite to
    13     the issuance of a license.
    14         (2)  To promulgate regulations not inconsistent with this
    15     act and only as necessary to carry out this act.
    16         (3)  To examine, deny, approve, issue, revoke, suspend or
    17     renew licenses of massage therapists under this act and to
    18     conduct hearings in connection with those powers and duties.
    19         (4)  To conduct hearings upon complaints concerning        <--
    20     violations of this act and the regulations promulgated under
    21     this act and to seek the prosecution and enjoinder of
    22     violations.
    23         (5)  To expend money necessary to the proper carrying out
    24     of its assigned duties.
    25         (6) (4)  To submit annually a report to the Consumer       <--
    26     Protection and Professional Licensure Committee of the Senate
    27     and the Professional Licensure Committee of the House of
    28     Representatives containing a description of the types of
    29     complaints received, status of the cases, board action which
    30     has been taken and length of time from the initial complaint
    20080H2499B4523                  - 7 -     

     1     to final board resolution.
     2         (7) (5)  To submit annually to the Appropriations          <--
     3     Committee of the Senate and the Appropriations Committee of
     4     the House of Representatives, within 15 days after the
     5     Governor has submitted a budget to the General Assembly, a
     6     copy of the budget request for the upcoming fiscal year which
     7     the board previously submitted to the department.
     8         (8) (6)  To establish standards of eligibility for         <--
     9     license renewal. These standards shall include, but not be
    10     limited to, the demonstration of satisfactory completion of a
    11     minimum of 24 hours of continuing education related to the
    12     practice of massage therapy in accordance with board
    13     regulations. No credit may be given for courses in office
    14     management or practice building. The board may waive all or
    15     part of the continuing education requirement to a licensee
    16     who shows to the satisfaction of the board that the licensee
    17     was unable to complete the requirement due to illness,
    18     emergency or hardship.
    19  Section 6 5.  Qualification for licensure.                        <--
    20     (a)  Applicants.--An applicant shall be considered to be
    21  qualified for a license if the applicant submits proof
    22  satisfactory to the board of all of the following:
    23         (1)  The applicant is of good moral character.
    24         (2)  The applicant has a high school diploma or its
    25     equivalent.
    26         (3)  The applicant has completed a massage program of at
    27     least 600 hours of in-class, postsecondary education
    28     instruction approved by the Department of Education or by the  <--
    29     board STATE BOARD OF PRIVATE LICENSED SCHOOLS. The program     <--
    30     under this paragraph must include training in the human
    20080H2499B4523                  - 8 -     

     1     immunodeficiency virus and related risks and training in
     2     cardiopulmonary resuscitation.
     3         (4)  The applicant has passed an examination under
     4     section 8 7.                                                   <--
     5         (5)  The applicant has paid a fee as established by the
     6     board by regulation.
     7         (6)  The applicant is not addicted to alcohol, narcotics   <--
     8     or other habit-forming drugs.
     9         (7) (6)  The applicant has not been convicted of a felony  <--
    10     under the act of April 14, 1972 (P.L.233, No.64), known as
    11     The Controlled Substance, Drug, Device and Cosmetic Act, or
    12     of an offense under the laws of another jurisdiction which,
    13     if committed in this Commonwealth, would be a felony under
    14     The Controlled Substance, Drug, Device and Cosmetic Act,
    15     unless the following apply:
    16             (i)  At least ten years have elapsed from the date of
    17         conviction.
    18             (ii)  The applicant satisfactorily demonstrates to
    19         the board that the applicant has made significant
    20         progress in personal rehabilitation since the conviction
    21         and that licensure of the applicant should not be
    22         expected to create a substantial risk of harm to the
    23         health and safety of the applicant's clients or the
    24         public or a substantial risk of further criminal
    25         violations.
    26             (iii)  The applicant otherwise satisfies the
    27         qualifications required under this act.
    28     (b)  Existing practitioners.--The board shall issue a license
    29  to an applicant who, on the effective date of this subsection,
    30  complies with all of the following paragraphs:
    20080H2499B4523                  - 9 -     

     1         (1)  Is an active professional practitioner of massage     <--
     2     therapy.
     3         (1)  IS ABLE TO DEMONSTRATE THAT THE APPLICANT HAS         <--
     4     CONDUCTED A BUSINESS AND BEEN AN ACTIVE PARTICIPANT IN THAT
     5     BUSINESS WHICH WAS MAINLY THE PRACTICE OF MASSAGE THERAPY.
     6         (2)  Meets the qualifications described in subsection
     7     (a)(1), (2), (5), (6) and (7) AND (6).                         <--
     8         (3)  Complies with one of the following subparagraphs:
     9             (i)  Has been in active, continuous practice for at
    10         least five years immediately preceding the effective date
    11         of this section.
    12             (ii)  Has passed an A MASSAGE THERAPY examination      <--
    13         that is part of a certification program accredited by the
    14         National Commission of Certifying Agencies.
    15             (iii)  Has completed 500 hours of instruction in
    16         massage and related subjects from a massage therapy
    17         program approved by the Department of Education or by the  <--
    18         board STATE BOARD OF PRIVATE LICENSED SCHOOLS.             <--
    19             (iv)  Has:
    20                 (A)  passed the National Examination for State
    21             Licensure (NESL) offered through the National
    22             Certification Board for Therapeutic Massage and
    23             Bodywork (NCBTMB); and
    24                 (B)  completed 100 hours of instruction in
    25             massage and related subjects.
    26             (v)  Has:
    27                 (A)  passed the Massage and Bodywork Licensure
    28             Examination (MBLEx) offered through the Federation of
    29             State Massage Therapy Boards (FSMTB); and
    30                 (B)  completed 100 hours of instruction in
    20080H2499B4523                 - 10 -     

     1             massage and related subjects.
     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 6.  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
    20080H2499B4523                 - 11 -     

     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.
    20080H2499B4523                 - 12 -     

     1  Section 8 7.  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 8.  Reciprocity.                                        <--
    13     The board has the power to grant a reciprocal license WITHOUT  <--
    14  FURTHER EXAMINATION to an applicant who is licensed or certified
    15  as a massage therapist or similar practice in another state and
    16  has demonstrated qualifications which equal or exceed those
    17  required under this act in the determination of the board. No
    18  license shall be granted under this section to an applicant
    19  unless the state in which the applicant is licensed affords
    20  reciprocal treatment to individuals who are residents of this
    21  Commonwealth and who are licensed under this act.
    22  Section 10 9.  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 A CRIME of moral turpitude or of an offense which, if  <--
    29     committed in this Commonwealth, would constitute a sexual      <--
    30     offense or a felony.
    20080H2499B4523                 - 13 -     

     1         (2)  Being found to have engaged in immoral or
     2     unprofessional conduct. In proceedings based on this
     3     paragraph, actual injury to the client need not be
     4     established. As used in this paragraph, the term
     5     "unprofessional conduct" includes:                             <--
     6             (i)  a departure from or failure to conform to the
     7         standards of acceptable and prevailing practice; and
     8             (ii)  sexual exploitation of a client.
     9     "UNPROFESSIONAL CONDUCT" INCLUDES A DEPARTURE FROM OR FAILURE  <--
    10     TO CONFORM TO THE STANDARDS OF ACCEPTABLE AND PREVAILING
    11     PRACTICE.
    12         (3)  Violating standards of professional practice or
    13     conduct as established by board regulation.
    14         (4)  Presenting false credentials or documents or making
    15     a false statement of fact in support of the individual's
    16     application for a license.
    17         (5)  Submitting a false or deceptive license renewal to
    18     the board.
    19         (6)  Having a license suspended, revoked or refused or
    20     receiving other disciplinary action by the proper licensing
    21     authority of another jurisdiction.
    22         (7)  Violating a regulation promulgated by the board or
    23     violating an order of the board previously entered in a
    24     disciplinary proceeding.
    25         (8)  Incompetence, negligence or misconduct in carrying
    26     out the practice of massage therapy.
    27         (9)  Practicing beyond the licensee's defined scope of
    28     practice.
    29         (10)  Knowingly aiding, assisting, hiring or advising
    30     someone in the unlawful practice of massage therapy.
    20080H2499B4523                 - 14 -     

     1         (11)  Being unable to practice with reasonable skill and
     2     safety by reason of illness; drunkenness; use of drugs,
     3     narcotics, chemicals or any other type of material; or as a
     4     result of any mental or physical condition. In enforcing this
     5     paragraph, the board, upon probable cause, has authority to
     6     compel a licensee to submit to a mental or physical
     7     examination by a physician approved by the board. Failure of
     8     a licensee to submit to an examination when directed by the
     9     board, unless the failure is due to circumstances beyond the
    10     licensee's control, may result in a default and final order
    11     entered against the licensee without the taking of testimony
    12     or presentation of evidence. A licensee affected under this
    13     paragraph shall be afforded an opportunity to demonstrate
    14     that the licensee can resume competent practice with
    15     reasonable skill and safety.
    16     (b)  Board action.--If the board finds that the license or
    17  application for license may be refused, revoked, restricted or
    18  suspended under the terms of subsection (a), the board may do
    19  any of the following:
    20         (1)  Deny the application for a license.
    21         (2)  Administer a public reprimand.
    22         (3)  Revoke, suspend, limit or otherwise restrict a
    23     license.
    24         (4)  Require a licensee to submit to the care, counseling
    25     or treatment of a physician.
    26         (5)  Suspend enforcement of its findings and place a
    27     licensee on probation with the right to vacate the
    28     probationary order for noncompliance.
    29         (6)  Restore a suspended license and impose any
    30     disciplinary or corrective measure which it might originally
    20080H2499B4523                 - 15 -     

     1     have imposed.
     2     (c)  Administrative Agency Law.--Actions of the board under
     3  subsections (a) and (b) are subject to 2 Pa.C.S. Ch. 5 Subch. A
     4  (relating to practice and procedure of Commonwealth agencies)
     5  and Ch. 7 Subch. A (relating to judicial review of Commonwealth
     6  agency action).
     7     (d)  Temporary and automatic suspension.--A license issued
     8  under this act shall be temporarily suspended under
     9  circumstances determined by the board to be an immediate and
    10  clear danger to the public health and safety. The board shall
    11  issue an order to that effect without a hearing, but upon due
    12  notice, to the licensee concerned at his or her last known
    13  address, which shall include a written statement of all
    14  allegations against the licensee. The provisions of subsection
    15  (c) shall not apply to temporary suspension. The board shall
    16  thereupon commence formal action to suspend, revoke or restrict
    17  the license of the person concerned as otherwise provided for in
    18  this act. All actions shall be taken promptly and without delay.
    19  Within 30 days following the issuance of an order temporarily
    20  suspending a license, the board shall conduct or cause to be
    21  conducted a preliminary hearing to determine that there is a
    22  prima facie case supporting the suspension. The licensee whose
    23  license has been temporarily suspended may be present at the
    24  preliminary hearing and may be represented by counsel, cross-
    25  examine witnesses, inspect physical evidence, call witnesses,
    26  offer evidence and testimony and make a record of the
    27  proceedings. If it is determined that there is not a prima facie
    28  case, the suspended license shall be immediately restored. The
    29  temporary suspension shall remain in effect until vacated by the
    30  board, but in no event longer than 180 days.
    20080H2499B4523                 - 16 -     

     1  Section 11 10.  Reinstatement of license.                         <--
     2     Unless ordered to do so by a court of competent jurisdiction,
     3  the board shall not reinstate the license of an individual which
     4  has been revoked. An individual whose license has been revoked
     5  may reapply for a license after a period of at least five years,
     6  and must meet all of the licensing requirements of this act.
     7  Section 12.  Impaired professional.                               <--
     8     (a)  Appointment of professional consultant.--The board, with
     9  the approval of the commissioner, shall appoint and fix the
    10  compensation of a professional consultant who is a licensee of
    11  the board, or such other professional as the board may determine
    12  with education and experience in the identification, treatment
    13  and rehabilitation of persons with physical or mental
    14  impairments. Such consultant shall be accountable to the board
    15  and shall act as a liaison between the board and treatment
    16  programs, such as alcohol and drug treatment programs licensed
    17  by the Department of Health, psychological counseling and
    18  impaired professional support groups, which are approved by the
    19  board and which provide services to licensees under this act.
    20     (b)  Subsequent action by board.--The board may defer and
    21  ultimately dismiss any of the types of corrective action set
    22  forth in this act for an impaired professional so long as the
    23  professional is progressing satisfactorily in an approved
    24  treatment program, provided that the provisions of this
    25  subsection shall not apply to a professional convicted of a
    26  felonious act prohibited by the act of April 14, 1972 (P.L.233,
    27  No.64), known as The Controlled Substance, Drug, Device and
    28  Cosmetic Act, or convicted of, pleaded guilty to or entered a
    29  plea of nolo contendere to a felony relating to a controlled
    30  substance in a court of law of the United States or any other
    20080H2499B4523                 - 17 -     

     1  state, territory or country. An approved program provider shall,
     2  upon request, disclose to the consultant such information in its
     3  possession regarding any impaired professional in treatment
     4  which the program provider is not prohibited from disclosing by
     5  an act of the United States, this Commonwealth or any other
     6  state. Such requirement of disclosure by an approved program
     7  provider shall apply in the case of impaired professionals who
     8  enter an agreement in accordance with this section, impaired
     9  professionals who are the subject of a board investigation or
    10  disciplinary proceeding and impaired professionals who
    11  voluntarily enter a treatment program other than under the
    12  provisions of this section but who fail to complete the program
    13  successfully or to adhere to an aftercare plan developed by the
    14  program provider.
    15     (c)  Agreement.--An impaired professional who enrolls in an
    16  approved treatment program shall enter into an agreement with
    17  the board under which the professional's license shall be
    18  suspended or revoked, but enforcement of the suspension or
    19  revocation may be stayed for the length of time the professional
    20  remains in the program and makes satisfactory progress, complies
    21  with the terms of the agreement and adheres to any limitations
    22  on his or her practice imposed by the board to protect the
    23  public. Failure to enter into such an agreement shall disqualify
    24  the professional from the impaired professional program and
    25  shall activate an immediate investigation and disciplinary
    26  proceeding by the board.
    27     (d)  Report by provider.--If, in the opinion of the
    28  consultant after consultation with the provider, an impaired
    29  professional who is enrolled in an approved treatment program
    30  has not progressed satisfactorily, the consultant shall disclose
    20080H2499B4523                 - 18 -     

     1  to the board all information in his or her possession relevant
     2  to the issue of impairment regarding said professional, and the
     3  board shall institute proceedings to determine if the stay of
     4  the enforcement of the suspension or revocation of the impaired
     5  professional's license shall be vacated.
     6     (e)  Immunity.--An approved program provider who makes a
     7  disclosure pursuant to this section shall not be subject to
     8  civil liability for such disclosure or its consequences.
     9     (f)  Reports by others.--Any hospital or health care
    10  facility, peer or colleague who has substantial evidence that a
    11  professional has an active addictive disease for which the
    12  professional is not receiving treatment, is diverting a
    13  controlled substance or is mentally or physically incompetent to
    14  carry out the duties of his or her license shall make or cause
    15  to be made a report to the board, provided that any person or
    16  facility who acts in a treatment capacity to an impaired
    17  professional in an approved treatment program is exempt from the
    18  mandatory reporting requirement of this subsection. Any person
    19  or facility who reports pursuant to this section in good faith
    20  and without malice shall be immune from any civil or criminal
    21  liability arising from such report. Failure to provide such
    22  report within a reasonable time from receipt of knowledge of
    23  impairment shall subject the person or facility to a fine of not
    24  more than $1,000. The board shall levy this penalty only after
    25  affording the accused party the opportunity for a hearing, as
    26  provided under 2 Pa.C.S. (relating to administrative law and
    27  procedure).
    28  Section 13.  Records and fees.
    29     (a)  Records.--A record of all licensees shall be kept in the
    30  office of the board and shall be open to public inspection and
    20080H2499B4523                 - 19 -     

     1  copying upon payment of a reasonable fee for copying the record.
     2     (b)   Fees.--
     3         (1)  All fees required under this act shall be fixed by
     4     the board by regulation. If the revenue raised by fees, fines
     5     and civil penalties imposed under this act are not sufficient
     6     to meet expenditures over a two-year period, the board shall
     7     increase those fees by regulation so that the projected
     8     revenues will meet or exceed projected expenditures.
     9         (2)  If the bureau determines that the fees established
    10     by the board under paragraph (1) are inadequate to meet the
    11     minimum enforcement efforts required by this act, the bureau,
    12     after consultation with the board, shall increase the fees by
    13     regulation in an amount so that adequate revenues are raised
    14     to meet the required enforcement effort.
    15  SECTION 11.  SETTING OF FEES AND DISPOSITION OF FEES, FINES AND   <--
    16                     CIVIL PENALTIES.
    17     (A)  SETTING OF FEES.--ALL FEES REQUIRED UNDER THIS ACT SHALL
    18  BE FIXED BY THE BOARD BY REGULATION AND SHALL BE SUBJECT TO THE
    19  ACT OF JUNE 25, 1982 (P.L.633, NO.181), KNOWN AS THE REGULATORY
    20  REVIEW ACT. IF THE REVENUES RAISED BY THE FEES, FINES AND CIVIL
    21  PENALTIES IMPOSED UNDER THIS ACT ARE NOT SUFFICIENT TO MEET
    22  EXPENDITURES OVER A TWO-YEAR PERIOD, THE BOARD SHALL INCREASE
    23  THOSE FEES BY REGULATION SO THAT PROJECTED REVENUES WILL MEET OR
    24  EXCEED PROJECTED EXPENDITURES.
    25     (B)  FEE INCREASE.--IF THE BUREAU DETERMINES THAT THE FEES
    26  ESTABLISHED BY THE BOARD UNDER SUBSECTION (A) ARE INADEQUATE TO
    27  MEET THE MINIMUM ENFORCEMENT EFFORTS REQUIRED BY THIS ACT, THEN
    28  THE BUREAU, AFTER CONSULTATION WITH THE BOARD AND SUBJECT TO THE
    29  REGULATORY REVIEW ACT, SHALL INCREASE THE FEES BY REGULATION IN
    30  AN AMOUNT THAT ADEQUATE REVENUES ARE RAISED TO MEET THE REQUIRED
    20080H2499B4523                 - 20 -     

     1  ENFORCEMENT EFFORT.
     2     (C)  DISPOSITION OF FEES, FINES AND CIVIL PENALTIES.--ALL
     3  FEES, FINES AND CIVIL PENALTIES IMPOSED IN ACCORDANCE WITH THIS
     4  ACT SHALL BE PAID INTO THE PROFESSIONAL LICENSURE AUGMENTATION
     5  ACCOUNT.
     6     (D)  FEES PERMITTED.--THE BOARD MAY CHARGE A FEE, AS SET BY
     7  THE BOARD BY REGULATION, FOR ALL EXAMINATIONS, REGISTRATIONS,
     8  RENEWALS, CERTIFICATIONS, LICENSES OR APPLICATIONS PERMITTED BY
     9  THIS ACT OR REGULATIONS UNDER THIS ACT.
    10  SECTION 12.  PUBLIC ACCESS TO LIST OF LICENSEES.
    11     THE BOARD SHALL MAINTAIN A CURRENT LIST OF ANY PERSON
    12  LICENSED WITH THE BOARD. THE LIST SHALL BE POSTED ON THE BOARD'S
    13  INTERNET WEBSITE AND SHALL BE SUBJECT TO THE ACT OF FEBRUARY 14,
    14  2008 (P.L.6, NO.3), KNOWN AS THE RIGHT-TO-KNOW LAW.
    15  Section 14 13.  Other professions.                                <--
    16     Nothing in this act shall be construed as preventing,
    17  restricting or requiring licensure of any of the following
    18  activities:
    19         (1)  The practice of a profession by an individual who is
    20     licensed, certified or registered by a Commonwealth agency
    21     under other law and who is performing services or advertising
    22     within the authorized scope of practice.
    23         (2)  The practice of massage therapy by an individual
    24     employed by the Federal Government while the individual is
    25     engaged in the performance of duties under Federal law.
    26         (3)  A student enrolled in a massage therapy education
    27     program who is:
    28             (i)  conducting massage therapy activities under the
    29         supervision of:
    30                 (A)  a licensee; or
    20080H2499B4523                 - 21 -     

     1                 (B)  instructors or supervisors who meet the
     2             licensing criteria of the Department of Education or
     3             the board; and
     4             (ii)  enrolled in a school approved by the Department
     5         of Education or by the board.
     6         (4)  The practice by an individual while performing
     7     reflexology.
     8         (5)  The practice of an individual who uses touch, words
     9     and directed movement to deepen awareness of existing
    10     patterns of movement in the body and to suggest new
    11     possibilities of movement, while engaged within the scope of
    12     practice of a profession with established standards and
    13     ethics.
    14         (6)  The practice of an individual who uses touch to
    15     affect the energy systems, accupoints ACUPOINTS, Qi meridians  <--
    16     or channels of energy of the human body while engaged within
    17     the scope of practice of a profession with established
    18     standards and ethics. SUCH PRACTICES INCLUDE ACUPRESSURE,      <--
    19     ASIAN BODYWORK THERAPY, POLARITY THERAPY BODYWORK, QUIGON,
    20     REIKI, SHIATSU AND TUI NA.
    21  Section 15 14.  Unlawful practice.                                <--
    22     (a)  General rule.--Except as set forth in section 14(1)       <--
    23  13(1) and (2), an individual may not practice massage therapy or  <--
    24  hold oneself out as a massage therapist unless licensed by the
    25  board.
    26     (b)  Title.--An individual who holds a license or is
    27  maintained on inactive status may use the title "Licensed
    28  Massage Therapist" and the abbreviation "L.M.T." No other
    29  individual may use the title "Licensed Massage Therapist" or the
    30  title "Massage Therapist" or hold oneself out to others as a
    20080H2499B4523                 - 22 -     

     1  massage therapist. This subsection includes advertising as a
     2  massage therapist and adopting or using any title or
     3  description, including massage therapist, massage practitioner,
     4  masseur, masseuse, myotherapist or a derivative of those terms
     5  and their related abbreviations, which implies directly or
     6  indirectly that massage services are being provided.
     7     (c)  Employment.--An individual, corporation, partnership,
     8  firm or other entity may not employ an individual in massage
     9  therapy unless the individual is licensed by the board.
    10     (d)  Terminology.--Except as set forth in section 14(1)        <--
    11  13(1), a business entity may not utilize in connection with a     <--
    12  business name or activity the words, "massage," "massage
    13  therapist," "massage practitioner," "masseur," "masseuse" or
    14  "myotherapist," or any derivative of these terms and their
    15  related abbreviations, which imply directly or indirectly that
    16  massage therapy services are being provided, unless the services
    17  of the business are provided by licensees.
    18     (e)  Injunction.--Unlawful practice may be enjoined by the     <--
    19  courts upon petition of the commissioner or the board. In a
    20  proceeding under this section, it shall not be necessary to show
    21  that an individual has been injured. Procedure in such cases
    22  shall be the same as in any other injunction suit.
    23     (E)  INJUNCTION.--IT SHALL BE UNLAWFUL FOR ANY PERSON TO       <--
    24  PRACTICE OR ATTEMPT TO OFFER TO PRACTICE MASSAGE THERAPY AS
    25  DEFINED IN THIS ACT WITHOUT HAVING AT THE TIME OF SO DOING A
    26  VALID, UNEXPIRED, UNREVOKED AND UNSUSPENDED LICENSE ISSUED UNDER
    27  THIS ACT. THE UNLAWFUL PRACTICE MAY BE ENJOINED BY THE COURTS ON
    28  PETITION OF THE BOARD OR THE COMMISSIONER. IN ANY SUCH
    29  PROCEEDING, IT SHALL NOT BE NECESSARY TO SHOW THAT ANY PERSON IS
    30  INDIVIDUALLY INJURED BY THE ACTIONS COMPLAINED OF. IF IT IS
    20080H2499B4523                 - 23 -     

     1  DETERMINED THAT THE RESPONDENT HAS ENGAGED IN THE UNLAWFUL
     2  PRACTICE, THE COURT SHALL ENJOIN THE RESPONDENT FROM SO
     3  PRACTICING UNLESS AND UNTIL THE RESPONDENT HAS BEEN DULY
     4  LICENSED. PROCEDURE IN SUCH CASES SHALL BE THE SAME AS IN ANY
     5  OTHER INJUNCTION SUIT. THE REMEDY BY INJUNCTION HEREBY GIVEN IS
     6  IN ADDITION TO ANY OTHER CIVIL OR CRIMINAL PROSECUTION AND
     7  PUNISHMENT.
     8     (f)  Remedy cumulative.--The injunctive remedy provided in
     9  this section shall be in addition to any other civil or criminal
    10  prosecution and punishment.
    11  Section 16 15.  Violation of act.                                 <--
    12     (a)  General rule.--Notwithstanding any law to the contrary,
    13  a person that violates a provision of this act or a regulation    <--
    14  of the board commits a misdemeanor of the third degree and
    15  shall, upon conviction, be sentenced to pay a fine of not more
    16  than $1,000 or to imprisonment for not more than six months for
    17  the first violation and to pay a fine of not more than $2,000 or
    18  to imprisonment for not less than six months or more than one
    19  year, or both, for each subsequent violation.
    20     (b)  Civil penalty.--In addition to any other civil remedy or
    21  criminal penalty provided for in this act, the board, by a vote
    22  of the majority of the maximum number of the authorized
    23  membership of the board or by a vote of the majority of the
    24  qualified and confirmed membership or a minimum of five members,
    25  whichever is greater, may levy a civil penalty of up to $10,000
    26  on any of the following:
    27         (1)  A massage therapist who violates a provision of this
    28     act.
    29         (2)  A person that employs a massage therapist in
    30     violation of this act.
    20080H2499B4523                 - 24 -     

     1         (3)  An individual who holds himself out as a licensee
     2     without being properly licensed as provided in this act.
     3         (4)  The responsible officers or employees of a
     4     corporation, partnership, firm or other entity that violates
     5     a provision of this act.
     6     (c)  Assessment of costs of investigation.--The board may      <--
     7  assess against a respondent determined to be in violation of the
     8  disciplinary provisions administered by the board in a
     9  disciplinary proceeding pending before the board for final
    10  determination, as part of the sanction, the costs of
    11  investigation underlying that disciplinary action. The cost of
    12  investigation shall not include any associated legal fees or any
    13  cost of prosecution.
    14     (C)  ASSESSMENT OF COSTS OF INVESTIGATION.--THE BOARD MAY      <--
    15  ASSESS AGAINST THE RESPONDENT IN A DISCIPLINARY ACTION UNDER
    16  THIS ACT, AS PART OF THE SANCTION, THE COST OF INVESTIGATION
    17  UNDERLYING THAT DISCIPLINARY ACTION.
    18     (d)  Administrative Agency Law.--Action of the board under
    19  subsection (b) is subject to 2 Pa.C.S. Ch. 5 Subch. A (relating
    20  to practice and procedure of Commonwealth agencies) and Ch. 7
    21  Subch. A (relating to judicial review of Commonwealth agency
    22  action).
    23  Section 17 16.  Preemption.                                       <--
    24     This act shall preempt and supersede any ordinance relating
    25  to the licensure or regulation of massage therapists by a
    26  political subdivision in effect on the effective date of this
    27  act SECTION.                                                      <--
    28  SECTION 17.  EFFECT OF LICENSURE.                                 <--
    29     LICENSURE UNDER THIS ACT SHALL NOT BE CONSTRUED AS REQUIRING
    30  NEW OR ADDITIONAL THIRD-PARTY REIMBURSEMENT OR OTHERWISE
    20080H2499B4523                 - 25 -     

     1  MANDATING COVERAGE UNDER 75 PA.C.S. CH. 17 (RELATING TO
     2  FINANCIAL RESPONSIBILITY) OR THE ACT OF JUNE 2, 1915 (P.L.736,
     3  NO.338), KNOWN AS THE WORKERS' COMPENSATION ACT.
     4  Section 49.  Funding.
     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. THE TRANSFERRED FUNDS SHALL BE REPAID BY THE   <--
    10  BOARD TO THE ACCOUNT WITHIN THREE YEARS OF THE BEGINNING OF
    11  ISSUANCE OF LICENSES BY THE BOARD.
    12  Section 50.  Regulations.
    13     The board shall promulgate regulations to carry out this act.
    14  Publication of the final-form regulations under this section
    15  shall take place within 18 months of the effective date of this
    16  section. The board shall report, within 60 180 days of the        <--
    17  effective date of this section, and every 30 days thereafter, on
    18  the status of the regulations to the Consumer Protection and
    19  Professional Licensure Committee of the Senate and the
    20  Professional Licensure Committee of the House of
    21  Representatives.
    22  Section 51.  Effective date.
    23     This act shall take effect as follows:
    24         (1)  The following provisions shall take effect
    25     immediately:
    26             (i)  Sections 4, 5 3, 4 and 50.                        <--
    27             (ii)  This section.
    28         (2)  The remainder of this act shall take effect in two
    29     years.

    E9L63RLE/20080H2499B4523        - 26 -
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