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        PRIOR PRINTER'S NOS. 3749, 3929               PRINTER'S NO. 3961



No. 2499 Session of 2008

           MAY 13, 2008


                                     AN ACT

     1  Regulating massage therapy; establishing the State Board of
     2     Massage Therapy; providing for funds, for licensure, for
     3     disciplinary action, for remedies, for penalties and for
     4     preemption; and making an appropriation.                       <--

     5     The General Assembly of the Commonwealth of Pennsylvania
     6  hereby enacts as follows:
     7  Section 1.  Short title.
     8     This act shall be known and may be cited as the Massage
     9  Therapy Law.
    10  Section 2.  Declaration of policy.
    11     The General Assembly finds and declares as follows:
    12         (1)  The practice of massage therapy may cause public
    13     safety issues if the practice is not subject to responsible
    14     regulation.
    15         (2)  Reasonable regulation is in furtherance of public

     1     health, safety and welfare interests.
     2         (3)  Regulation is necessary to set educational standards
     3     within the profession and to protect the public from
     4     unqualified massage therapy practitioners and unscrupulous
     5     individuals.
     6         (4)  Consumer protection with respect to both health and
     7     economic matters will be afforded the public through the
     8     regulation and associated legal remedies provided for in this
     9     act.
    10  Section 3.  Definitions.
    11     The following words and phrases when used in this act shall
    12  have the meanings given to them in this section unless the
    13  context clearly indicates otherwise:
    14     "Account."  The Professional Licensure Augmentation Account.
    15     "Applicant."  An individual who applies for a license.
    16     "Board."  The State Board of Massage Therapy.
    17     "Bureau."  The Bureau of Professional and Occupational
    18  Affairs.
    19     "Commissioner."  The Commissioner of Professional and
    20  Occupational Affairs.
    21     "Convicted."  Includes a finding or verdict of guilt, an
    22  admission of guilt, a plea of nolo contendere or a sentence of
    23  probation without verdict, disposition in lieu of trial or an
    24  accelerated rehabilitative disposition in the disposition of
    25  felony charges.
    26     "Department."  The Department of State of the Commonwealth.
    27     "License."  A license to practice massage therapy under this
    28  act.
    29     "Licensee."  An individual who holds a license to practice
    30  massage therapy.
    20080H2499B3961                  - 2 -     

     1     "Massage therapist."  An individual licensed by the board to
     2  practice massage therapy.
     3     "Massage therapy."  The application of a system of structured
     4  touch, pressure, movement, holding and treatment of the soft
     5  tissue manifestations of the human body in which the primary
     6  intent is to enhance the health and well-being of the client
     7  without limitation, except as provided in this act. The term
     8  includes the external application of water, heat, cold,
     9  lubricants or other topical preparations, lymphatic techniques,
    10  myofascial release techniques and the use of electro-mechanical
    11  devices which mimic or enhance the action of the massage
    12  techniques. The term does not include the diagnosis or treatment
    13  of impairment, illness, disease or disability, a medical
    14  procedure, a chiropractic manipulation/adjustment, physical
    15  therapy mobilization/manual therapy, therapeutic exercise,
    16  electrical stimulation, ultrasound or prescription of medicines
    17  for which a license to practice medicine, chiropractic, physical
    18  therapy, occupational therapy, podiatry or other practice of the
    19  healing arts is required.
    20     "Reflexology."  The physical act of using thumbs, fingers and
    21  hand techniques to apply specific pressure on the reflex area in
    22  the feet, hands or ears of the client.
    23     "Sexual behavior."  Conduct which is or is intended to be
    24  sexual in nature or which may be construed by a reasonable
    25  person as sexual in nature.
    26     "Sexual exploitation."  Sexual behavior with a current client
    27  which uses trust, knowledge, emotions or influence derived from
    28  the professional relationship.
    29     "Sexual offense."  An offense under any provision of 18
    30  Pa.C.S. (relating to crimes and offenses).
    20080H2499B3961                  - 3 -     

     1  Section 4.  Board.
     2     (a)  Establishment.--There is established the State Board of
     3  Massage Therapy, an administrative board within the department.
     4  The board shall consist of nine members who are citizens of the
     5  United States and who have been residents of this Commonwealth
     6  for at least a two-year period prior to the effective date of
     7  this section. The board shall be composed of the following
     8  individuals:
     9         (1)  Two members who are members of the public.
    10         (2)  Five members who meet the educational and experience
    11     qualifications for licensure under section 6. No more than
    12     one member under this paragraph shall be an owner of a school
    13     that provides instruction in massage therapy.
    14         (3)  The Secretary of Health or a designee.
    15         (4)  The commissioner or a designee.
    16     (b)  Term of office.--Except as provided in subsection (c),
    17  the members of the board shall serve for four-year terms and
    18  shall be appointed by the Governor by and with the advice and
    19  consent of a majority of the members elected to the Senate.
    20     (c)  Initial appointments.--Within 90 days of the effective
    21  date of this section, the Governor shall nominate two
    22  professional members to serve four-year terms, one public member
    23  and one professional member to serve three-year terms, one
    24  public member and one professional member to serve two-year
    25  terms and one professional member to serve a one-year term. A
    26  professional member initially appointed to the board pursuant to
    27  this act need not be licensed at the time of appointment but at
    28  the time of appointment must have satisfied the eligibility
    29  requirements for licensure and must have practiced massage
    30  therapy for five consecutive years or more immediately preceding
    20080H2499B3961                  - 4 -     

     1  the appointments.
     2     (d)  Continuation in office.--Each board member shall
     3  continue in office until a successor is appointed and qualified
     4  but no longer than six months after the expiration of the term.
     5  If a board member shall die, resign or otherwise become
     6  disqualified during the term of office, a successor shall be
     7  appointed in the same way and with the same qualifications as
     8  set forth in this section and shall hold office for the
     9  unexpired portion of the term.
    10     (e)  Limit on terms.--No board member shall be eligible for
    11  reappointment to serve more than two consecutive four-year
    12  terms.
    13     (f)  Forfeiture of membership.--A board member who fails to
    14  attend three consecutive meetings without permission of the
    15  commissioner shall forfeit the member's seat unless the
    16  commissioner, upon written request from the member, finds that
    17  the member should be excused from a meeting because of illness
    18  or the death of a family member.
    19     (g)  Compensation.--A member of the board, except the
    20  commissioner, shall receive per diem compensation at the rate of
    21  $60 when actually attending to the work of the board. Members
    22  shall also receive reasonable traveling, hotel and other
    23  necessary expenses incurred in the performance of their duties
    24  in accordance with regulations.
    25     (h)  Forfeiture for nonattendance.--A public member who fails
    26  to attend two consecutive statutorily mandated training seminars
    27  in accordance with section 813(e) of the act of April 9, 1929
    28  (P.L.177, No.175), known as The Administrative Code of 1929,
    29  shall forfeit the public member's seat unless the commissioner,
    30  upon written request from the public member, finds that the
    20080H2499B3961                  - 5 -     

     1  public member should be excused from a meeting because of
     2  illness or the death of a family member.
     3     (i)  Quorum.--A majority of the members of the board shall
     4  constitute a quorum for the purposes of conducting the business
     5  of the board. Except for temporary and automatic suspensions
     6  under section 10(d), a member may not be counted as part of a
     7  quorum or vote on any issue unless the member is physically in
     8  attendance at the meeting.
     9     (j)  Chairperson.--The board shall annually select a
    10  chairperson from among its members.
    11     (k)  Meetings.--The board shall meet at least four times a
    12  year in Harrisburg and at other times and places as the board
    13  shall determine is necessary to conduct board business.
    14     (l)  Notice.--Reasonable notice of all meetings shall be
    15  given in conformity with 65 Pa.C.S. Ch. 7 (relating to open
    16  meetings).
    17     (m)  Operating procedures.--The board shall meet within 30
    18  days after the appointment of its initial members and shall
    19  institute operating procedures and an application form for
    20  licensing massage therapists. It shall be the responsibility of
    21  the board to educate the public as to the requirements of
    22  licensing in order to hold oneself out or to practice as a
    23  licensed massage therapist within this Commonwealth.
    24  Section 5.  Powers and duties of board.
    25     The board has the following powers and duties:
    26         (1)  To pass upon the qualifications and fitness of
    27     applicants for licenses and reciprocal licenses and to
    28     promulgate regulations requiring applicants to pass
    29     examinations relating to qualifications as a prerequisite to
    30     the issuance of a license.
    20080H2499B3961                  - 6 -     

     1         (2)  To promulgate regulations not inconsistent with this
     2     act and only as necessary to carry out this act.
     3         (3)  To examine, deny, approve, issue, revoke, suspend or
     4     renew licenses of massage therapists under this act and to
     5     conduct hearings in connection with those powers and duties.
     6         (4)  To conduct hearings upon complaints concerning
     7     violations of this act and the regulations promulgated under
     8     this act and to seek the prosecution and enjoinder of
     9     violations.
    10         (5)  To expend money necessary to the proper carrying out
    11     of its assigned duties.
    12         (6)  To submit annually a report to the Consumer
    13     Protection and Professional Licensure Committee of the Senate
    14     and the Professional Licensure Committee of the House of
    15     Representatives containing a description of the types of
    16     complaints received, status of the cases, board action which
    17     has been taken and length of time from the initial complaint
    18     to final board resolution.
    19         (7)  To submit annually to the Appropriations Committee
    20     of the Senate and the Appropriations Committee of the House
    21     of Representatives, within 15 days after the Governor has
    22     submitted a budget to the General Assembly, a copy of the
    23     budget request for the upcoming fiscal year which the board
    24     previously submitted to the department.
    25         (8)  To establish standards of eligibility for license
    26     renewal. These standards shall include, but not be limited
    27     to, the demonstration of satisfactory completion of a minimum
    28     of 24 hours of continuing education related to the practice
    29     of massage therapy in accordance with board regulations. No
    30     credit may be given for courses in office management or
    20080H2499B3961                  - 7 -     

     1     practice building. The board may waive all or part of the
     2     continuing education requirement to a licensee who shows to
     3     the satisfaction of the board that the licensee was unable to
     4     complete the requirement due to illness, emergency or
     5     hardship.
     6  Section 6.  Qualification for licensure.
     7     (a)  Applicants.--An applicant shall be considered to be
     8  qualified for a license if the applicant submits proof
     9  satisfactory to the board of all of the following:
    10         (1)  The applicant is of good moral character.
    11         (2)  The applicant has a high school diploma or its
    12     equivalent.
    13         (3)  The applicant has completed a massage program of at
    14     least 600 hours of in-class, postsecondary education
    15     instruction approved by the Department of Education or by the
    16     board. The program under this paragraph must include training
    17     in the human immunodeficiency virus and related risks and
    18     training in cardiopulmonary resuscitation.
    19         (4)  The applicant has passed an examination under
    20     section 8.
    21         (5)  The applicant has paid a fee as established by the
    22     board by regulation.
    23         (6)  The applicant is not addicted to alcohol, narcotics
    24     or other habit-forming drugs.
    25         (7)  The applicant has not been convicted of a felony
    26     under the act of April 14, 1972 (P.L.233, No.64), known as
    27     The Controlled Substance, Drug, Device and Cosmetic Act, or
    28     of an offense under the laws of another jurisdiction which,
    29     if committed in this Commonwealth, would be a felony under
    30     The Controlled Substance, Drug, Device and Cosmetic Act,
    20080H2499B3961                  - 8 -     

     1     unless the following apply:
     2             (i)  At least ten years have elapsed from the date of
     3         conviction.
     4             (ii)  The applicant satisfactorily demonstrates to
     5         the board that the applicant has made significant
     6         progress in personal rehabilitation since the conviction
     7         and that licensure of the applicant should not be
     8         expected to create a substantial risk of harm to the
     9         health and safety of the applicant's clients or the
    10         public or a substantial risk of further criminal
    11         violations.
    12             (iii)  The applicant otherwise satisfies the
    13         qualifications required under this act.
    14     (b)  Existing practitioners.--The board shall issue a license
    15  to an applicant who, on the effective date of this subsection,
    16  complies with all of the following paragraphs:
    17         (1)  Is an active professional practitioner of massage
    18     therapy.
    19         (2)  Meets the qualifications described in subsection
    20     (a)(1), (2), (5), (6) and (7).
    21         (3)  Complies with one of the following subparagraphs:
    22             (i)  Has:                                              <--
    23                 (A)  been in active, continuous practice for at
    25         least five years immediately preceding the effective date
    26         of this section; and.                                      <--
    27                 (B)  completed 150 hours of instruction in         <--
    28             massage, including continuing education and related
    29             subjects.
    30             (ii)  Has passed an examination administered by a
    20080H2499B3961                  - 9 -     

     1         certifying agency which is approved by the National
     2         Commission of Certifying Agencies and is in good standing
     3         with the certifying agency or with the board.
     4             (II)  HAS PASSED AN EXAMINATION THAT IS PART OF A      <--
     7             (iii)  Has completed 500 hours of instruction in
     8         massage and related subjects from a massage therapy
     9         program approved by the Department of Education or by the
    10         board.
    11             (IV)  HAS:                                             <--
    15             BODYWORK (NCBTMB); AND
    16                 (B)  COMPLETED 100 HOURS OF INSTRUCTION IN
    18             (V)  HAS:
    22                 (B)  COMPLETED 100 HOURS OF INSTRUCTION IN
    24     (c)  Temporary practice permit.--
    25         (1)  The board may issue a temporary practice permit to
    26     an applicant in order to permit the applicant to practice
    27     massage therapy during the six-month period after completion
    28     of the applicant's education program.
    29         (2)  The temporary practice permit issued under paragraph
    30     (1) shall be nonrenewable and shall expire on the earlier of:
    20080H2499B3961                 - 10 -     

     1             (i)  six months from the date of issuance; or
     2             (ii)  the date the applicant fails the licensing
     3         examination.
     4     (d)  Transferability.--A license and a temporary practice
     5  permit are not transferable.
     6  Section 7.  Biennial renewal of license.
     7     (a)  Duration of license.--A license shall be valid for two
     8  years. The expiration date shall be established by regulation of
     9  the board. Application for renewal of a license shall be
    10  forwarded to an individual holding a current license prior to
    11  the expiration date of the current renewal.
    12     (b)  Procedure.--To renew a license, a licensee must do all
    13  of the following:
    14         (1)  File a renewal application with the board which
    15     includes the following:
    16             (i)  Current certification to administer
    17         cardiopulmonary resuscitation.
    18             (ii)  Certification of successful completion of a
    19         minimum of 24 hours of continuing education in the field
    20         of massage therapy during the immediately preceding two
    21         years. Certification of continuing education credit hours
    22         submitted by the massage therapist shall be properly
    23         signed as being correct and true.
    24         (2)  Pay a fee established by regulation of the board.
    25     (c)  Inactive status.--Any person licensed under this act may
    26  request an application for inactive status. The application may
    27  be completed and returned to the board; upon receipt of each
    28  application, the applicant shall be maintained on inactive
    29  status without fee and shall be entitled to apply for an active
    30  license at any time. An application to reactivate a license
    20080H2499B3961                 - 11 -     

     1  which has been placed on inactive status for less than five
     2  years shall be accompanied by a verification of nonpractice, the
     3  renewal fee and documentation evidencing the satisfactory
     4  completion of the continuing education requirement for the
     5  preceding biennial period. Any person who requests an active
     6  status license who has been on inactive status for a period of
     7  five consecutive years or longer shall, prior to receiving an
     8  active license, satisfy the requirements of the board's
     9  regulations for ensuring continued competence and remit the
    10  required fee. A person shall not be denied active status as a
    11  result of any increased educational requirements for licensure
    12  since the time he or she received his or her original license.
    13     (d)  Reporting of multiple licensure.--A licensee who is
    14  licensed to practice massage therapy in another jurisdiction
    15  shall report this information to the board on the license
    16  renewal application. Any disciplinary action taken in another
    17  jurisdiction shall be reported to the board on the license
    18  renewal application or within 90 days of final disposition,
    19  whichever is sooner. Multiple licensure shall be noted by the
    20  board on the licensee's record, and the other licensing
    21  jurisdiction shall be notified by the board of any disciplinary
    22  actions taken against the licensee in this Commonwealth.
    23  Section 8.  Examinations.
    24     The board shall contract with a professional testing
    25  organization for the examination of qualified applicants for
    26  licensure. The board shall approve the examination before it is
    27  administered. Any examination approved by the board must meet
    28  generally recognized psychometric principles and standards. All
    29  written, oral and practical examinations shall be prepared and
    30  administered by a qualified and approved professional testing
    20080H2499B3961                 - 12 -     

     1  organization in the manner prescribed for written examinations
     2  by section 812.1 of the act of April 9, 1929 (P.L.177, No.175),
     3  known as The Administrative Code of 1929.
     4  Section 9.  Reciprocity.
     5     The board has the power to grant a reciprocal license to an
     6  applicant who is licensed or certified as a massage therapist or
     7  similar practice in another state and has demonstrated
     8  qualifications which equal or exceed those required under this
     9  act in the determination of the board. No license shall be
    10  granted under this section to an applicant unless the state in
    11  which the applicant is licensed affords reciprocal treatment to
    12  individuals who are residents of this Commonwealth and who are
    13  licensed under this act.
    14  Section 10.  Refusal, suspension and revocation of licenses.
    15     (a)  Grounds.--The board may refuse, suspend, revoke, limit
    16  or restrict a license or discipline a licensee for any of the
    17  following:
    18         (1)  Being convicted under Federal law, under the law of
    19     any state or under the law of another jurisdiction of an
    20     offense of moral turpitude or of an offense which, if
    21     committed in this Commonwealth, would constitute a sexual
    22     offense or a felony.
    23         (2)  Being found to have engaged in immoral or
    24     unprofessional conduct. In proceedings based on this
    25     paragraph, actual injury to the client need not be
    26     established. As used in this paragraph, the term
    27     "unprofessional conduct" includes:
    28             (i)  a departure from or failure to conform to the
    29         standards of acceptable and prevailing practice; and
    30             (ii)  sexual exploitation of a client.
    20080H2499B3961                 - 13 -     

     1         (3)  Violating standards of professional practice or
     2     conduct as established by board regulation.
     3         (4)  Presenting false credentials or documents or making
     4     a false statement of fact in support of the individual's
     5     application for a license.
     6         (5)  Submitting a false or deceptive license renewal to
     7     the board.
     8         (6)  Having a license suspended, revoked or refused or
     9     receiving other disciplinary action by the proper licensing
    10     authority of another jurisdiction.
    11         (7)  Violating a regulation promulgated by the board or
    12     violating an order of the board previously entered in a
    13     disciplinary proceeding.
    14         (8)  Incompetence, negligence or misconduct in carrying
    15     out the practice of massage therapy.
    16         (9)  Practicing beyond the licensee's defined scope of
    17     practice.
    18         (10)  Knowingly aiding, assisting, hiring or advising
    19     someone in the unlawful practice of massage therapy.
    20         (11)  Being unable to practice with reasonable skill and
    21     safety by reason of illness; drunkenness; use of drugs,
    22     narcotics, chemicals or any other type of material; or as a
    23     result of any mental or physical condition. In enforcing this
    24     paragraph, the board, upon probable cause, has authority to
    25     compel a licensee to submit to a mental or physical
    26     examination by a physician approved by the board. Failure of
    27     a licensee to submit to an examination when directed by the
    28     board, unless the failure is due to circumstances beyond the
    29     licensee's control, may result in a default and final order
    30     entered against the licensee without the taking of testimony
    20080H2499B3961                 - 14 -     

     1     or presentation of evidence. A licensee affected under this
     2     paragraph shall be afforded an opportunity to demonstrate
     3     that the licensee can resume competent practice with
     4     reasonable skill and safety.
     5     (b)  Board action.--If the board finds that the license or
     6  application for license may be refused, revoked, restricted or
     7  suspended under the terms of subsection (a), the board may do
     8  any of the following:
     9         (1)  Deny the application for a license.
    10         (2)  Administer a public reprimand.
    11         (3)  Revoke, suspend, limit or otherwise restrict a
    12     license.
    13         (4)  Require a licensee to submit to the care, counseling
    14     or treatment of a physician.
    15         (5)  Suspend enforcement of its findings and place a
    16     licensee on probation with the right to vacate the
    17     probationary order for noncompliance.
    18         (6)  Restore a suspended license and impose any
    19     disciplinary or corrective measure which it might originally
    20     have imposed.
    21     (c)  Administrative Agency Law.--Actions of the board under
    22  subsections (a) and (b) are subject to 2 Pa.C.S. Ch. 5 Subch. A
    23  (relating to practice and procedure of Commonwealth agencies)
    24  and Ch. 7 Subch. A (relating to judicial review of Commonwealth
    25  agency action).
    26     (d)  Temporary and automatic suspension.--A license issued
    27  under this act shall be temporarily suspended under
    28  circumstances determined by the board to be an immediate and
    29  clear danger to the public health and safety. The board shall
    30  issue an order to that effect without a hearing, but upon due
    20080H2499B3961                 - 15 -     

     1  notice, to the licensee concerned at his or her last known
     2  address, which shall include a written statement of all
     3  allegations against the licensee. The provisions of subsection
     4  (c) shall not apply to temporary suspension. The board shall
     5  thereupon commence formal action to suspend, revoke or restrict
     6  the license of the person concerned as otherwise provided for in
     7  this act. All actions shall be taken promptly and without delay.
     8  Within 30 days following the issuance of an order temporarily
     9  suspending a license, the board shall conduct or cause to be
    10  conducted a preliminary hearing to determine that there is a
    11  prima facie case supporting the suspension. The licensee whose
    12  license has been temporarily suspended may be present at the
    13  preliminary hearing and may be represented by counsel, cross-
    14  examine witnesses, inspect physical evidence, call witnesses,
    15  offer evidence and testimony and make a record of the
    16  proceedings. If it is determined that there is not a prima facie
    17  case, the suspended license shall be immediately restored. The
    18  temporary suspension shall remain in effect until vacated by the
    19  board, but in no event longer than 180 days.
    20  Section 11.  Reinstatement of license.
    21     Unless ordered to do so by a court of competent jurisdiction,
    22  the board shall not reinstate the license of an individual which
    23  has been revoked. An individual whose license has been revoked
    24  may reapply for a license after a period of at least five years,
    25  and must meet all of the licensing requirements of this act.
    26  Section 12.  Impaired professional.
    27     (a)  Appointment of professional consultant.--The board, with
    28  the approval of the commissioner, shall appoint and fix the
    29  compensation of a professional consultant who is a licensee of
    30  the board, or such other professional as the board may determine
    20080H2499B3961                 - 16 -     

     1  with education and experience in the identification, treatment
     2  and rehabilitation of persons with physical or mental
     3  impairments. Such consultant shall be accountable to the board
     4  and shall act as a liaison between the board and treatment
     5  programs, such as alcohol and drug treatment programs licensed
     6  by the Department of Health, psychological counseling and
     7  impaired professional support groups, which are approved by the
     8  board and which provide services to licensees under this act.
     9     (b)  Subsequent action by board.--The board may defer and
    10  ultimately dismiss any of the types of corrective action set
    11  forth in this act for an impaired professional so long as the
    12  professional is progressing satisfactorily in an approved
    13  treatment program, provided that the provisions of this
    14  subsection shall not apply to a professional convicted of a
    15  felonious act prohibited by the act of April 14, 1972 (P.L.233,
    16  No.64), known as The Controlled Substance, Drug, Device and
    17  Cosmetic Act, or convicted of, pleaded guilty to or entered a
    18  plea of nolo contendere to a felony relating to a controlled
    19  substance in a court of law of the United States or any other
    20  state, territory or country. An approved program provider shall,
    21  upon request, disclose to the consultant such information in its
    22  possession regarding any impaired professional in treatment
    23  which the program provider is not prohibited from disclosing by
    24  an act of the United States, this Commonwealth or any other
    25  state. Such requirement of disclosure by an approved program
    26  provider shall apply in the case of impaired professionals who
    27  enter an agreement in accordance with this section, impaired
    28  professionals who are the subject of a board investigation or
    29  disciplinary proceeding and impaired professionals who
    30  voluntarily enter a treatment program other than under the
    20080H2499B3961                 - 17 -     

     1  provisions of this section but who fail to complete the program
     2  successfully or to adhere to an aftercare plan developed by the
     3  program provider.
     4     (c)  Agreement.--An impaired professional who enrolls in an
     5  approved treatment program shall enter into an agreement with
     6  the board under which the professional's license shall be
     7  suspended or revoked, but enforcement of the suspension or
     8  revocation may be stayed for the length of time the professional
     9  remains in the program and makes satisfactory progress, complies
    10  with the terms of the agreement and adheres to any limitations
    11  on his or her practice imposed by the board to protect the
    12  public. Failure to enter into such an agreement shall disqualify
    13  the professional from the impaired professional program and
    14  shall activate an immediate investigation and disciplinary
    15  proceeding by the board.
    16     (d)  Report by provider.--If, in the opinion of the
    17  consultant after consultation with the provider, an impaired
    18  professional who is enrolled in an approved treatment program
    19  has not progressed satisfactorily, the consultant shall disclose
    20  to the board all information in his or her possession relevant
    21  to the issue of impairment regarding said professional, and the
    22  board shall institute proceedings to determine if the stay of
    23  the enforcement of the suspension or revocation of the impaired
    24  professional's license shall be vacated.
    25     (e)  Immunity.--An approved program provider who makes a
    26  disclosure pursuant to this section shall not be subject to
    27  civil liability for such disclosure or its consequences.
    28     (f)  Reports by others.--Any hospital or health care
    29  facility, peer or colleague who has substantial evidence that a
    30  professional has an active addictive disease for which the
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     1  professional is not receiving treatment, is diverting a
     2  controlled substance or is mentally or physically incompetent to
     3  carry out the duties of his or her license shall make or cause
     4  to be made a report to the board, provided that any person or
     5  facility who acts in a treatment capacity to an impaired
     6  professional in an approved treatment program is exempt from the
     7  mandatory reporting requirement of this subsection. Any person
     8  or facility who reports pursuant to this section in good faith
     9  and without malice shall be immune from any civil or criminal
    10  liability arising from such report. Failure to provide such
    11  report within a reasonable time from receipt of knowledge of
    12  impairment shall subject the person or facility to a fine of not
    13  more than $1,000. The board shall levy this penalty only after
    14  affording the accused party the opportunity for a hearing, as
    15  provided under 2 Pa.C.S. (relating to administrative law and
    16  procedure).
    17  Section 13.  Records and fees.
    18     (a)  Records.--A record of all licensees shall be kept in the
    19  office of the board and shall be open to public inspection and
    20  copying upon payment of a reasonable fee for copying the record.
    21     (b)   Fees.--
    22         (1)  All fees required under this act shall be fixed by
    23     the board by regulation. If the revenue raised by fees, fines
    24     and civil penalties imposed under this act are not sufficient
    25     to meet expenditures over a two-year period, the board shall
    26     increase those fees by regulation so that the projected
    27     revenues will meet or exceed projected expenditures.
    28         (2)  If the bureau determines that the fees established
    29     by the board under paragraph (1) are inadequate to meet the
    30     minimum enforcement efforts required by this act, the bureau,
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     1     after consultation with the board, shall increase the fees by
     2     regulation in an amount so that adequate revenues are raised
     3     to meet the required enforcement effort.
     4  Section 14.  Other professions.
     5     Nothing in this act shall be construed as preventing,
     6  restricting or requiring licensure of any of the following
     7  activities:
     8         (1)  The practice of a profession by an individual who is
     9     licensed, certified or registered by a Commonwealth agency
    10     under other law and who is performing services or advertising
    11     within the authorized scope of practice.
    12         (2)  The practice of massage therapy by an individual
    13     employed by the Federal Government while the individual is
    14     engaged in the performance of duties under Federal law.
    15         (3)  A student enrolled in a massage therapy education
    16     program who is:
    17             (i)  conducting massage therapy activities under the
    18         supervision of:
    19                 (A)  a licensee; or
    20                 (B)  instructors or supervisors who meet the
    21             licensing criteria of the Department of Education or
    22             the board; and
    23             (ii)  enrolled in a school approved by the Department
    24         of Education or by the board.
    25         (4)  The practice by an individual while performing
    26     reflexology.
    27         (5)  The practice of an individual who uses touch, words
    28     and directed movement to deepen awareness of existing
    29     patterns of movement in the body and to suggest new
    30     possibilities of movement, while engaged within the scope of
    20080H2499B3961                 - 20 -     

     1     practice of a profession with established standards and
     2     ethics.
     3         (6)  The practice of an individual who uses touch to
     4     affect the energy systems, accupoints, Qi meridians or
     5     channels of energy of the human body while engaged within the
     6     scope of practice of a profession with established standards
     7     and ethics.
     8  Section 15.  Unlawful practice.
     9     (a)  General rule.--Except as set forth in section 14(1) and
    10  (2), an individual may not practice massage therapy or hold
    11  oneself out as a massage therapist unless licensed by the board.
    12     (b)  Title.--An individual who holds a license or is
    13  maintained on inactive status may use the title "Licensed
    14  Massage Therapist" and the abbreviation "L.M.T." No other
    15  individual may use the title "Licensed Massage Therapist" or the
    16  title "Massage Therapist" or hold oneself out to others as a
    17  massage therapist. This subsection includes advertising as a
    18  massage therapist and adopting or using any title or
    19  description, including massage therapist, massage practitioner,
    20  masseur, masseuse, myotherapist or a derivative of those terms
    21  and their related abbreviations, which implies directly or
    22  indirectly that massage services are being provided.
    23     (c)  Employment.--An individual, corporation, partnership,
    24  firm or other entity may not employ an individual in massage
    25  therapy unless the individual is licensed by the board.
    26     (d)  Terminology.--Except as set forth in section 14(1), a
    27  business entity may not utilize in connection with a business
    28  name or activity the words, "massage," "massage therapist,"
    29  "massage practitioner," "masseur," "masseuse" or "myotherapist,"
    30  or any derivative of these terms and their related
    20080H2499B3961                 - 21 -     

     1  abbreviations, which imply directly or indirectly that massage
     2  therapy services are being provided, unless the services of the
     3  business are provided by licensees.
     4     (e)  Injunction.--Unlawful practice may be enjoined by the
     5  courts upon petition of the commissioner or the board. In a
     6  proceeding under this section, it shall not be necessary to show
     7  that an individual has been injured. Procedure in such cases
     8  shall be the same as in any other injunction suit.
     9     (f)  Remedy cumulative.--The injunctive remedy provided in
    10  this section shall be in addition to any other civil or criminal
    11  prosecution and punishment.
    12  Section 16.  Violation of act.
    13     (a)  General rule.--Notwithstanding any law to the contrary,
    14  a person that violates a provision of this act or a regulation
    15  of the board commits a misdemeanor of the third degree and
    16  shall, upon conviction, be sentenced to pay a fine of not more
    17  than $1,000 or to imprisonment for not more than six months for
    18  the first violation and to pay a fine of not more than $2,000 or
    19  to imprisonment for not less than six months or more than one
    20  year, or both, for each subsequent violation.
    21     (b)  Civil penalty.--In addition to any other civil remedy or
    22  criminal penalty provided for in this act, the board, by a vote
    23  of the majority of the maximum number of the authorized
    24  membership of the board or by a vote of the majority of the
    25  qualified and confirmed membership or a minimum of five members,
    26  whichever is greater, may levy a civil penalty of up to $10,000
    27  on any of the following:
    28         (1)  A massage therapist who violates a provision of this
    29     act.
    30         (2)  A person that employs a massage therapist in
    20080H2499B3961                 - 22 -     

     1     violation of this act.
     2         (3)  An individual who holds himself out as a licensee
     3     without being properly licensed as provided in this act.
     4         (4)  The responsible officers or employees of a
     5     corporation, partnership, firm or other entity that violates
     6     a provision of this act.
     7     (c)  Assessment of costs of investigation.--The board may
     8  assess against a respondent determined to be in violation of the
     9  disciplinary provisions administered by the board in a
    10  disciplinary proceeding pending before the board for final
    11  determination, as part of the sanction, the costs of
    12  investigation underlying that disciplinary action. The cost of
    13  investigation shall not include any associated legal fees or any
    14  cost of prosecution.
    15     (d)  Administrative Agency Law.--Action of the board under
    16  subsection (b) is subject to 2 Pa.C.S. Ch. 5 Subch. A (relating
    17  to practice and procedure of Commonwealth agencies) and Ch. 7
    18  Subch. A (relating to judicial review of Commonwealth agency
    19  action).
    20  Section 17.  Preemption.
    21     This act shall preempt and supersede any ordinance relating
    22  to the licensure or regulation of massage therapists by a
    23  political subdivision in effect on the effective date of this
    24  act.
    25  Section 49.  Appropriation and repayment FUNDING.                 <--
    26     (a)  Appropriation.--The sum of $85,000, or as much thereof    <--
    27  as may be necessary, is hereby appropriated from the
    28  Professional Licensure Augmentation Account to the department
    29  for the payment of costs associated with processing licenses and
    30  renewing licenses, for the operation of the board and for other
    20080H2499B3961                 - 23 -     

     1  costs associated with this act.
     2     (b)  Repayment.--The appropriation shall be repaid by the
     3  board to the account within three years of the beginning of
     4  issuance of licenses by the board.
    10  Section 50.  Regulations.
    11     The board shall promulgate regulations to carry out this act.
    12  Publication of the final-form regulations under this section
    13  shall take place within 18 months of the effective date of this
    14  section. The board shall report, within 60 days of the effective
    15  date of this section, and every 30 days thereafter, on the
    16  status of the regulations to the Consumer Protection and
    17  Professional Licensure Committee of the Senate and the
    18  Professional Licensure Committee of the House of
    19  Representatives.
    20  Section 51.  Effective date.
    21     This act shall take effect as follows:
    22         (1)  The following provisions shall take effect
    23     immediately:
    24             (i)  Sections 4, 5 and 50.
    25             (ii)  This section.
    26         (2)  The remainder of this act shall take effect in two
    27     years.

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