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