PRINTER'S NO. 1543
No. 1220 Session of 1999
INTRODUCED BY FUMO, STOUT, GREENLEAF, MELLOW, BOSCOLA, CONTI,
KUKOVICH, BODACK, KITCHEN, BELAN, RHOADES, THOMPSON,
SCHWARTZ, COSTA, LEMMOND AND KASUNIC, NOVEMBER 30, 1999
REFERRED TO CONSUMER PROTECTION AND PROFESSIONAL LICENSURE,
NOVEMBER 30, 1999
AN ACT
1 Providing for the regulation and licensure of somatic
2 practitioners, massage therapists and reflexologists;
3 creating the State Board of Somatic Practices, Massage
4 Therapy and Reflexology and providing for its powers and
5 duties; providing for licensure, for unlawful practices and
6 for disciplinary actions; imposing fines and penalties; and
7 making an appropriation.
8 TABLE OF CONTENTS
9 Section 1. Short title.
10 Section 2. Declaration of policy.
11 Section 3. Definitions.
12 Section 4. State Board of Somatic Practices, Massage Therapy
13 and Reflexology.
14 Section 5. Powers and duties of board.
15 Section 6. License required.
16 Section 7. Requirements for licensure.
17 Section 8. Application for license and fees.
18 Section 9. Reciprocal licenses.
19 Section 10. License renewal and continuing education.
1 Section 11. Display of license.
2 Section 12. Examinations.
3 Section 13. Refusal, suspension or revocation of licensure.
4 Section 14. Temporary suspension.
5 Section 15. Automatic suspension.
6 Section 16. Hearing and restoration to practice.
7 Section 17. Penalties and injunctive relief.
8 Section 18. Impaired professional.
9 Section 19. Third party reimbursement.
10 Section 20. Appropriation.
11 Section 21. Effective date.
12 The General Assembly of the Commonwealth of Pennsylvania
13 hereby enacts as follows:
14 Section 1. Short title.
15 This act shall be known and may be cited as the Somatic
16 Practices, Massage Therapy and Reflexology Act.
17 Section 2. Declaration of policy.
18 The General Assembly recognizes that the establishment of
19 training and educational standards for the practice of somatic
20 practices, massage therapy and reflexology is beneficial to the
21 public health and welfare. It is the intent of the General
22 Assembly that individuals who meet and maintain certain
23 standards of competence and training defined in this act may
24 provide services to the public, benefiting the public with
25 competent services and professional conduct while ensuring
26 minimum standards of competency.
27 Section 3. Definitions.
28 The following words and phrases when used in this act shall
29 have the meanings given to them in this section unless the
30 context clearly indicates otherwise:
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1 "Board." The State Board of Somatic Practices, Massage
2 Therapy and Reflexology.
3 "Commissioner." The Commissioner of the Bureau of
4 Professional and Occupational Affairs.
5 "Massage therapy." A profession dealing with those practices
6 using the application of a system of structured touch to the
7 human body, which may include, but is not limited to, holding,
8 pressure, positioning and causing movement of the body by manual
9 means. The term includes complementary methods, including the
10 external application of water, heat, cold, lubricants or other
11 topical preparations; and electro-mechanical devices that mimic
12 or enhance the actions possible by the hands. The term does not
13 include the diagnosis of illness or disease, medical procedures,
14 chiropractic adjustment, electrical stimulation, ultrasound,
15 prescription of medicines or the use of modalities for which a
16 license to practice medicine, chiropractic, physical therapy,
17 occupational therapy, podiatry or other practice of the healing
18 arts is required.
19 "Movement education." The art and science of teaching self-
20 awareness and habitual movement patterns by verbally and
21 physically guiding the student in the self-discovery of
22 alternative and improved postures, coordination and choices of
23 behavior.
24 "Person." Any individual, organization, association,
25 partnership, company, trust or corporate body, except that any
26 reference in this act to a licensed person shall mean a natural
27 individual person.
28 "Reflexologist." Any person licensed under this act to
29 practice reflexology.
30 "Reflexology." A science based on the premise that there are
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1 zones and reflex areas in the feet and hands which correspond to
2 all glands, organs, parts and systems of the body. The term
3 incorporates the physical act of applying specific pressure
4 using thumb, finger and hand techniques to these reflex areas.
5 The term does not include the diagnosis of illness or disease,
6 medical procedures, chiropractic adjustment, electrical
7 stimulation, ultrasound, prescription of medicines or the use of
8 modalities for which a license to practice medicine,
9 chiropractic, physical therapy, occupational therapy, podiatry
10 or other practice of the healing arts is required.
11 "Somatic practices." Complementary health care practice
12 systems of activities including, but not limited to, touch,
13 verbal interaction and movement in order to assess and assist an
14 individual in making changes in breathing, movement and
15 lifestyle patterns. The term does not include the diagnosis of
16 illness or disease, medical procedures, chiropractic adjustment,
17 electrical stimulation, ultrasound, prescription of medicines or
18 the use of modalities for which a license to practice medicine,
19 chiropractic, physical therapy, occupational therapy, podiatry
20 or other practice of the healing arts is required.
21 Section 4. State Board of Somatic Practices, Massage Therapy
22 and Reflexology.
23 (a) Creation.--There is hereby created a board to be known
24 as the State Board of Somatic Practices, Massage Therapy and
25 Reflexology, which board shall be composed of the commissioner,
26 who shall serve in the commissioner's official capacity, and
27 eight other members who shall be residents of this Commonwealth
28 and who shall be appointed by the Governor, with the advice and
29 consent of a majority of the members elected to the Senate.
30 Three of the members shall be somatic practitioners and massage
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1 therapists, but no more than two practitioners of a particular
2 method or manner of treatment may serve at the same time. One
3 member shall be a reflexologist. One member shall be an owner or
4 director of a school approved by the board. One member shall be
5 an osteopathic physician or medical doctor licensed to practice
6 in this Commonwealth. All the members of the board who are
7 either somatic practitioners, massage therapists or
8 reflexologists shall have actively practiced in this
9 Commonwealth for at least three years immediately preceding
10 appointment to the board, and each shall possess the necessary
11 qualifications for licensure. After the initial appointments,
12 the members of the board who are somatic practitioners, massage
13 therapists or reflexologists shall also be required to obtain a
14 license pursuant to this act. The final two board members shall
15 be selected from the general public from lists of names
16 submitted by the board. No public member appointed to the board
17 shall be affiliated in any manner with professions or
18 occupations covered by this act. The chairperson of the board
19 shall be either a somatic practitioner, a massage therapist or a
20 reflexologist and shall be elected by a vote of a majority of
21 all of the board members.
22 (b) Terms.--At the meeting of the board, the appointed
23 members shall determine, by lot, three members to serve three-
24 year terms, three members to serve two-year terms and two
25 members to serve one-year terms, with the exception of the
26 commissioner. When the term of each appointed member of the
27 board ends, the Governor shall appoint a successor for a term of
28 three years, with the advice and consent of a majority of the
29 members elected to the Senate. The board members shall continue
30 to serve until their successors are appointed and qualified but
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1 not longer than six months beyond the three-year period.
2 (c) Reappointment.--A member of the board shall be eligible
3 for reappointment. A member shall not be appointed to serve more
4 than two consecutive terms.
5 (d) Compensation and expenses.--The members of the board,
6 other than the commissioner, shall receive reimbursement for
7 reasonable travel, hotel and other necessary expenses and $60
8 per diem when actually engaged in the performance of their
9 official duties.
10 (e) Meetings of the board.--The board shall hold a meeting
11 within 150 days after the effective date of this act and
12 annually thereafter in the month prescribed by the board and
13 shall elect a chairperson, vice chairperson and secretary who
14 shall be members of the board. The board shall meet at such
15 other times as deemed necessary and advisable by the chairperson
16 or by a majority of its members. Reasonable notice of all
17 meetings shall be given in the manner prescribed by the board. A
18 majority of the board shall constitute a quorum at any meeting
19 or hearing.
20 (f) Attendance.--A member who fails to attend three
21 consecutive meetings shall forfeit the member's seat unless the
22 commissioner, upon written request from the member, finds that
23 member should be excused from the meeting because of illness or
24 death of a family member.
25 Section 5. Powers and duties of board.
26 The board shall have the power and its duties shall be:
27 (1) To decide matters relating to the issuance, renewal,
28 suspension or revocation of all applicable licenses pursuant
29 to this act.
30 (2) To promulgate, adopt and enforce, in a manner
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1 provided by law, the rules and regulations necessary to carry
2 out this act.
3 (3) To provide for examinations in accordance with this
4 act.
5 (4) To keep a record showing the names and addresses of
6 all licensees under this act.
7 (5) To keep minutes and records of all its transactions
8 and proceedings, especially in relation to the issuance,
9 denial, registration, formal reprimand, suspension or
10 revocation of licenses.
11 (6) To issue subpoenas, upon application of an attorney
12 responsible for representing the Commonwealth, in
13 disciplinary matters before the board for the purpose of
14 investigating alleged violations of the disciplinary
15 provisions administered by the board. The board shall have
16 the power to subpoena witnesses, to administer oaths, to
17 examine witnesses and to take testimony or compel the
18 production of books, records, papers and documents as it may
19 deem necessary or proper and pertinent to any proceeding,
20 investigation or hearing held by it. The board is authorized
21 to apply to Commonwealth Court to enforce its subpoenas.
22 (7) To appoint hearing examiners or, on its own, to
23 conduct hearings and adjudications, including adjudications
24 involving disciplinary actions.
25 (8) To waive examination and educational requirements
26 and grant licenses provided in section 9.
27 (9) To establish standards for eligibility for license
28 renewal pursuant to this act.
29 (10) To at all times represent the diversity within the
30 profession when making decisions and to stay current and
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1 informed with information regarding the various branches of
2 somatic practices.
3 Section 6. License required.
4 (a) Licenses.--Except as provided for in subsection (c), it
5 shall be unlawful for any person to hold himself or herself out
6 to others as a somatic practitioner, massage therapist or
7 reflexologist in this Commonwealth in any manner whatsoever
8 unless the person has met the educational requirements of this
9 act and holds a current, unsuspended, unrevoked license issued
10 in accordance with the provisions of this act. Licensure shall
11 be granted separately in two areas:
12 (1) Somatic practices and massage therapy.
13 (2) Reflexology.
14 (b) Exemptions.--Nothing in this act shall be construed as
15 preventing or restricting:
16 (1) The practice of a profession by persons who are
17 licensed, certified or registered under other laws of this
18 Commonwealth and who are performing services within their
19 authorized scope of practice.
20 (2) The practice of massage and bodywork therapy by a
21 person employed by the Federal Government while the person is
22 engaged in the performance of duties prescribed by the laws
23 and regulations of the United States.
24 (3) The practice of massage and bodywork therapy by
25 persons duly licensed, registered or certified in another
26 state, territory, the District of Columbia or a foreign
27 country when incidentally called into this Commonwealth to
28 teach a course related to massage and bodywork therapy or to
29 consult with a person licensed under this act.
30 (4) Students enrolled in a board-approved school while
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1 completing a clinical requirement for graduation that shall
2 be performed under the supervision of a person licensed under
3 this act.
4 (5) A person giving massage and bodywork therapy to
5 members of that person's immediate family.
6 (c) Title and utilization.--A person commits a violation of
7 this section if that person holds himself or herself out to
8 others as a somatic practitioner, massage therapist or
9 reflexologist and adopts or uses any title or description,
10 including massage therapist, reflexologist, massage
11 practitioner, masseur, masseuse, myotherapist, somatic
12 therapist, body therapist, body worker, structural integrator,
13 touch therapist or any derivative of those terms and their
14 related abbreviations, which implies directly or indirectly that
15 somatic practices services, massage therapy services or
16 reflexology services are being provided, including the billing
17 of somatic practices services, massage therapy services or
18 reflexology services unless those services are provided by a
19 licensed somatic practitioner, massage therapist or
20 reflexologist in accordance with this act. The terms massage
21 therapist and somatic practitioner may be used interchangeably
22 by persons licensed under this act to practice massage therapy
23 or somatic practices.
24 (d) Prohibited use.--It shall be a violation of this act for
25 any business entity to utilize in connection with a business
26 name or activity the words: somatic practitioners, massage,
27 massage therapist, reflexologist, massage practitioner, masseur,
28 masseuse, myotherapist, somatic therapist, body therapist, body
29 worker, structural integrator or any derivative of those terms
30 and their related abbreviations, which implies directly or
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1 indirectly that somatic practices services, massage therapy
2 services or reflexology services are being provided, including
3 the billing of massage therapy services, somatic practices
4 services or reflexology services unless those services are
5 provided by a licensed somatic practitioner, massage therapist
6 or reflexologist in accordance with this act.
7 Section 7. Requirements for licensure.
8 (a) General rule.--Except as otherwise provided, to be
9 eligible for licensure by the board as a somatic practitioner,
10 massage therapist or reflexologist, an applicant shall pay a fee
11 as established by the board, be of good moral character to the
12 satisfaction of the board, have a high school diploma or its
13 equivalent, not be addicted to the habitual use of alcohol,
14 narcotics or other habit-forming drugs and not have been
15 convicted of a felony and:
16 (1) For a license in somatic practices and massage
17 therapy, the applicant must satisfactorily complete somatic
18 practices or massage therapy studies with a minimum of 600
19 hours of in-class, post-secondary course instruction approved
20 by the board, completed in not less than six months, and pass
21 a written examination approved by the board. The course of
22 study shall include, but shall not be limited to, the study
23 of anatomy, physiology, pathology, techniques and protocols
24 following the standards of practice of the particular
25 discipline, practicum, ethics, communication skills and
26 business practices. To obtain and maintain a license under
27 this act, certification in cardiopulmonary resuscitation is
28 also required.
29 (2) For a license in reflexology, the applicant must
30 satisfactorily complete reflexology studies with a minimum of
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1 100 hours of in-class, postsecondary course instruction
2 approved by the board, 100 hours of documented practicum
3 experience, and pass a written examination approved by the
4 board. The course of study shall include, but shall not be
5 limited to, study in the basic subjects of theory and
6 technique of hand and foot reflexology, anatomy of feet and
7 hands, basic level of anatomy and physiology, professional
8 ethics, hygiene and business practice. Applicants must also
9 be certified in cardiopulmonary resuscitation. Seminar
10 attendance shall be accepted in satisfaction of the
11 requirements of this paragraph, but participation in
12 correspondence classes or instruction shall not be accepted.
13 (b) Active practitioners.--All initial applicants who are
14 professional practitioners of somatic practices, massage therapy
15 or reflexology who meet the qualifications described in this act
16 upon the effective date of this act shall be licensed by the
17 board as soon as possible, subject to the following:
18 (1) (i) Except as provided in paragraph (3), active
19 practitioners in the profession of somatic practices and
20 massage therapy who have been in active, continuous
21 practice for two or more years immediately preceding the
22 effective date of this act shall have two years from the
23 effective date of this act to fulfill the requirements of
24 150 hours of instruction in the field of somatic
25 practices or massage therapy.
26 (ii) Except as provided in paragraph (4), active
27 practitioners in the profession of reflexology who have
28 been in active, continuous practice for two or more years
29 immediately preceding the effective date of this act
30 shall have two years from the effective date of this act
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1 to fulfill the requirements of 70 hours of classroom
2 instruction in the field of reflexology.
3 (2) Applicants shall be issued temporary licenses during
4 the two-year period while they are fulfilling the hours of
5 instruction required by paragraph (1). A temporary license
6 shall expire at the end of two years or sooner if the
7 temporary licensee establishes, to the satisfaction of the
8 board, that the licensee has met the educational requirements
9 in this act and has received a regular license from the
10 board. The temporary license shall not be renewable and shall
11 be at the same fee as a regular license.
12 (3) The hours of instruction required by paragraph
13 (1)(i) shall be waived in the case of an active practitioner
14 who has passed a national certification examination approved
15 by the board and maintained the certification.
16 (4) The hours of instruction required by paragraph
17 (1)(ii) shall be waived in the case of an active practitioner
18 who possesses current certification or a diploma from a
19 program approved by the board.
20 (c) Prohibition.--Any person licensed by this act shall not
21 have been convicted of a felonious act prohibited by the act of
22 April 14, 1972 (P.L.233, No.64), known as The Controlled
23 Substance, Drug, Device and Cosmetic Act, or of an offense under
24 the laws of another jurisdiction which if committed in this
25 Commonwealth would be a felony under The Controlled Substance,
26 Drug, Device and Cosmetic Act, unless the applicant satisfies
27 all of the following criteria:
28 (1) At least ten years have elapsed from the date of
29 conviction.
30 (2) Satisfactorily demonstrates to the board that the
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1 applicant has made significant progress in personal
2 rehabilitation since the conviction such that licensure of
3 the applicant should not be expected to create a substantial
4 risk of harm to the health and safety of his clients or the
5 public or a substantial risk of further criminal violations.
6 Section 8. Application for license and fees.
7 (a) Fees, forms.--The board shall, by regulation, set the
8 fees required for examinations and for all forms of licensure
9 provided for in this act.
10 (b) Insufficient revenues.--If the revenues raised by fees,
11 fines and civil penalties imposed pursuant to this act are not
12 sufficient to meet expenditures over a two-year period, the
13 board shall increase those fees by regulation so that projected
14 revenues will meet or exceed projected expenditures.
15 (c) Increase by bureau.--If the Bureau of Professional and
16 Occupational Affairs determines that the fees established by the
17 board pursuant to subsections (a) and (b) are inadequate to meet
18 the minimum enforcement efforts required by this act, then the
19 bureau, after consultation with the board, shall increase the
20 fees by regulation so that adequate revenues are raised to meet
21 the required enforcement effort.
22 (d) Review.--Any regulation promulgated under this section
23 shall be subject to the act of June 25, 1982 (P.L.633, No.181),
24 known as the Regulatory Review Act.
25 (e) Depository.--All fees and fines collected pursuant to
26 the provisions of this act shall be paid into the Professional
27 Licensure Augmentation Account established pursuant to and for
28 the use and in accordance with the act of July 1, 1978 (P.L.700,
29 No.124), known as the Bureau of Professional and Occupational
30 Affairs Fee Act.
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1 (f) Examinations.--The board shall offer at least two
2 examinations for licensure each year. Notice of examinations
3 shall be given at least 60 days prior to their administration.
4 The board shall maintain a permanent record of all examination
5 scores. In case of the failure of the first examination, the
6 applicant for licensure shall have the privilege of a second
7 examination within one year of the first failure. The board may
8 adopt regulations governing the eligibility of applicants who
9 have failed to pass two examinations in order to be admitted to
10 subsequent examinations.
11 Section 9. Reciprocal licenses.
12 Upon application and payment of the licensing fees, as
13 provided for in this act, the board shall issue a license in
14 somatic practices, massage therapy or reflexology to a person
15 who has a valid license in somatic practices, massage therapy or
16 reflexology or similar practice from another state, territory,
17 possession or country, if the board is satisfied that the other
18 state, territory, possession or country maintains a system and
19 standard of qualifications substantially equivalent to or
20 greater than that provided for in this act and the applicant has
21 complied with any related rules and regulations of the board.
22 Section 10. License renewal and continuing education.
23 (a) General rule.--Licenses issued under this act shall be
24 renewed every two years. On or before November 1 of each renewal
25 year, the board shall mail an application for renewal of license
26 to each person to whom a license was issued or renewed during
27 the current licensing period, which application shall be mailed
28 to the most recent address of the person as it appears on the
29 records of the board. Such person shall complete the renewal
30 application and return it to the board with a renewal fee before
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1 December 31 of the year in which the application was received.
2 Upon receipt of any such application and fee, the board, upon
3 verifing the accuracy and completeness of the application,
4 including the applicant's current certification in
5 cardiopulmonary resuscitation, shall issue to the applicant a
6 renewed license for the next licensing period. The renewal fee
7 for each licensing period shall be set by regulation.
8 (b) Continuing education.--When renewing a license, each
9 licensee shall submit to the board evidence of the successful
10 completion of a minimum of 24 hours of study in the field of
11 somatic practices, massage therapy or reflexology during the
12 immediately preceding two years as approved by the board.
13 (c) Resumption of practice.--Any person who has failed to
14 renew license issued under this act for a period longer than
15 five years shall be required to apply for a license as if the
16 person never possessed a license if the person desires to resume
17 practicing somatic practices and massage therapy or reflexology.
18 Section 11. Display of license.
19 All licenses issued under this act shall be posted
20 conspicuously at all times at the practitioner's place of
21 business.
22 Section 12. Examinations.
23 (a) Administration.--All written examinations shall be
24 prepared and administered by qualified professional testing
25 organizations under contract with the Bureau of Professional and
26 Occupational Affairs and approved by the board in accordance
27 with the act of April 9, 1929 (P.L.177, No.175), known as The
28 Administrative Code of 1929. No board member shall have a
29 financial interest in a professional testing organization.
30 (b) Cost of exam.--The purpose of the examination fee, which
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1 is to be established in accordance with this act, shall ensure
2 that the applicants' fees cover the entire cost of the
3 examination and administration. Costs shall consist of all
4 contractual charges relating to preparing, administering,
5 grading and recording of the examination.
6 Section 13. Refusal, suspension or revocation of licensure.
7 The board shall refuse to issue a license or may suspend or
8 revoke a license for any of the following reasons:
9 (1) Failing to demonstrate the qualifications or
10 standards for a license contained in this act or regulations
11 of the board.
12 (2) Making misleading, deceptive, untrue or fraudulent
13 representations in the practice of somatic practices, massage
14 therapy or reflexology.
15 (3) Practicing fraud or deceit in obtaining a license to
16 practice somatic practices, massage therapy or reflexology.
17 (4) Displaying gross incompetence, negligence or
18 misconduct in carrying out the practice of somatic practices,
19 massage therapy or reflexology.
20 (5) Submitting a false or deceptive registration to the
21 board.
22 (6) Being convicted of a felony, misdemeanor or
23 receiving probation without verdict, disposition in lieu of
24 trial or an accelerated rehabilitative disposition in the
25 disposition of felony charges in a Federal Court,the courts
26 of this Commonwealth, or a court of any other state,
27 territory, possession or country.
28 (7) Having a license to practice somatic practices,
29 massage therapy or reflexology suspended, revoked or refused
30 or receiving other disciplinary action by the appropriate
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1 somatic practices, massage therapy or reflexology or similar
2 licensing authority of another state, territory, possession
3 or country.
4 (8) Being unable to practice somatic practices, massage
5 therapy or reflexology with reasonable skill and safety to
6 clients by reason of illness, drunkenness, excessive use of
7 drugs, narcotics, chemicals or any other type of material, or
8 as a result of any mental or physical condition.
9 (9) Violating a lawful regulation promulgated by the
10 board or violating a lawful order of the board previously
11 entered in a disciplinary proceeding.
12 (10) Knowingly aiding, assisting, procuring or advising
13 any unlicensed person to practice somatic practices, massage
14 therapy or reflexology contrary to this act or to the
15 regulations of the board.
16 (11) Diagnosing or practicing spinal adjustments or
17 prescribing medicines.
18 (12) Practicing beyond or offering to practice beyond
19 the licensee's defined scope of practice or accepting and
20 performing professional practices or responsibilities which
21 the licensee knows or has reason to know that the licensee is
22 not licensed nor competent to perform.
23 (13) Falsely holding oneself out to be licensed or
24 certified in any healing arts practice covered by this act.
25 Section 14. Temporary suspension.
26 The board shall temporarily suspend a license under
27 circumstances as determined by the board to be of an immediate
28 and clear danger to the public health or safety. The board shall
29 issue an order to that effect without a hearing upon due notice
30 to the licensee at the licensee's last known address, which
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1 order shall include a written statement of all allegations
2 against the licensee. The provisions of section 13(9) shall not
3 apply to temporary suspension. The board shall thereupon
4 commence formal action to suspend, revoke or restrict the
5 license of the person concerned as otherwise provided for in
6 this act. All actions shall be taken promptly and without delay.
7 Within 45 days following the issuance of an order temporarily
8 suspending a license, the board shall conduct or cause to be
9 conducted a preliminary hearing to determine that suspension.
10 The licensee whose license has been temporarily suspended may be
11 present at the preliminary hearing and may be represented by
12 counsel, cross-examine witnesses, inspect physical evidence,
13 call witnesses, offer evidence and testimony and make a record
14 of the proceedings. If it is determined that there is not a
15 prima facie case, the suspended licensed shall be immediately
16 restored. The temporary suspension shall remain in effect until
17 vacated by the board, but in no event longer than 180 days.
18 Section 15. Automatic suspension.
19 A license issued under this act shall automatically be
20 suspended upon the legal commitment of a licensee to an
21 institution because of mental incompetency from any cause upon
22 filing with the board a certified copy of such commitment,
23 conviction of a felony under the act of April 14, 1972 (P.L.233,
24 No.64), known as The Controlled Substance, Drug, Device and
25 Cosmetic Act, or conviction of an offense under the laws of
26 another jurisdiction which, if committed in this Commonwealth,
27 would be a felony under The Controlled Substance, Drug, Device
28 and Cosmetic Act, or a violation of section 13(13). Automatic
29 suspension under this section shall not be stayed pending any
30 appeal of a conviction. Restoration of the license shall be made
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1 as provided in this act for revocation or suspension of a
2 license. As used in this section, the term "conviction" shall
3 include a judgment, an admission of guilt or a plea of nolo
4 contendere.
5 Section 16. Hearing and restoration to practice.
6 (a) Hearings.--Notwithstanding sections 14 and 15, any
7 person licensed by the board, or any applicant for licensure by
8 the board, who is affected by the actions of the board for any
9 reason referred to in this act shall be cited by the board with
10 a copy of the reasons and shall, upon request, have a hearing
11 before the board or before a hearing officer appointed by the
12 board.
13 (b) Procedure.--At any hearing, the licensed person or
14 applicant shall have the right to appear personally with or by
15 legal counsel, to cross-examine witnesses and to produce
16 witnesses and evidence. The board may subpoena witnesses and
17 documentary evidence on its own behalf and, if requested by the
18 licensed person or applicant, shall subpoena witnesses and
19 documents on behalf of the licensee or applicant. The board may
20 administer oaths, examine witnesses and compel testimony. A
21 record of the hearing shall be made by the board and copy
22 furnished to the licensed person or applicant upon payment of a
23 reasonable charge.
24 (c) Decision.--A decision by the board shall be within 120
25 days after the final hearing conducted by the board. The
26 revocation or suspension, for any cause, of a license issued by
27 the board may be removed when it shall appear to the board to be
28 just and proper. Upon any removal of the revocation or
29 suspension of the license by the board, the name of the licensed
30 person shall be restored and replaced upon the record in the
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1 office of the board.
2 (d) Return of license.--The board shall require a person
3 whose license has been suspended or revoked to return the
4 license in such manner as the board directs. A person who fails
5 to do so commits a misdemeanor of the third degree.
6 Section 17. Penalties and injunctive relief.
7 (a) Penalties.--A person who violates a provision of this
8 act as a first offense commits a misdemeanor and upon conviction
9 shall be punished by a fine of not less than $100 or more than
10 $500 or by imprisonment for not more than 15 days. A person who
11 commits subsequent offenses shall be subject to a fine of not
12 less than $500 or more than $1,000 and imprisonment of not more
13 than 30 days.
14 (b) Injunctive relief.--The board may, in the name of the
15 people of the Commonwealth, through the Office of Attorney
16 General, apply for injunctive relief in any court of competent
17 jurisdiction to enjoin any person from committing any violation
18 of this act. The injunction proceeding shall be in addition to
19 and not in lieu of all penalties and other remedies in this act.
20 (c) Civil penalty.--In addition to any other civil remedy or
21 criminal penalty provided for in existing law or in this act,
22 the board, by a vote of a majority of the quorum, may levy a
23 civil penalty of up to $500 on any current licensee who violates
24 any provision of this act or on any person who practices somatic
25 practices, massage therapy or reflexology or holds out in any
26 manner as such without being properly licensed to do so under
27 this act. The board shall levy this penalty only after affording
28 the accused party the opportunity for a hearing as provided in 2
29 Pa.C.S. (relating to administrative law and procedure).
30 (d) Depository.--All fines and civil penalties imposed in
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1 accordance with this section shall be paid into the Professional
2 Licensure Augmentation Account.
3 (e) Ineligibility.--A person convicted of a violation of the
4 provisions of this act shall additionally be ineligible for
5 licensure as a somatic practitioner, massage therapist or
6 reflexologist for a period of five years from the date of
7 conviction.
8 Section 18. Impaired professional.
9 (a) Consultant.--The board, with the approval of the
10 Commissioner of Professional and Occupational Affairs, shall
11 appoint and fix the compensation of a professional consultant
12 who is a licensee of the board, or such other professional as
13 the board may determine, with education and experience in the
14 identification, treatment and rehabilitation of persons with
15 physical or mental impairments. The consultant shall be
16 accountable to the board and shall act as a liaison between the
17 board and treatment programs, such as alcohol and drug treatment
18 programs licensed by the Department of Health, psychological
19 counseling and impaired professional support groups, which are
20 approved by the board and which provide services to licensees
21 under this act.
22 (b) Treatment program.--The board may defer and ultimately
23 dismiss any of the types of corrective action set forth in this
24 act for an impaired professional as long as the professional is
25 progressing satisfactorily in an approved treatment program,
26 provided that the provisions of this subsection shall not apply
27 to a professional convicted of a felonious act prohibited by the
28 act of April 14, 1972 (P.L.233, No.64), known as The Controlled
29 Substance, Drug, Device and Cosmetic Act, or convicted of a
30 felony relating to a controlled substance in a court of law of
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1 the United States or a court of law of any other state,
2 territory or country. An approved program provider shall, upon
3 request, disclose to the consultant such information in its
4 possession regarding an impaired professional in treatment which
5 the program provider is not prohibited from disclosing by an act
6 of this Commonwealth or another state. The requirement of
7 disclosure by an approved program provider shall apply in the
8 case of impaired professionals who enter an agreement in
9 accordance with this section, impaired professionals who are the
10 subject of a board investigation or disciplinary proceeding and
11 impaired professionals who voluntarily enter a treatment program
12 other than under the provisions of this section but who fail to
13 complete the program successfully or to adhere to an aftercare
14 plan developed by the 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 that 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 this practice imposed by the board to protect the public.
23 Failure to enter into such an agreement shall disqualify the
24 professional from the impaired professional program and shall
25 activate an immediate investigation and disciplinary proceeding
26 by the board.
27 (d) Enforcement.--If, in the opinion of the consultant after
28 consultation with the provider, an impaired professional who is
29 enrolled in an approved treatment program has not progressed
30 satisfactorily, the consultant shall disclose to the board all
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1 information in the consultant's possession regarding the
2 professional, and the board shall institute proceedings to
3 determine if the stay of the enforcement of the suspension or
4 revocation of the impaired professional's license shall be
5 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 the disclosure or its consequences.
9 (f) Impairment reports.--Any hospital or health care
10 facility, peer or colleague who has substantial evidence that a
11 licensee has an active addictive disease for which the licensee
12 is not receiving treatment, is diverting a controlled substance
13 or is mentally or physically incompetent to carry out the duties
14 of a licensee shall make or cause to be made a report to the
15 board, provided that any person or facility who acts in a
16 treatment capacity to an impaired somatic practitioner, massage
17 therapist or reflexologist in an approved treatment program is
18 exempt from the mandatory reporting requirements of this
19 subsection. Any person or facility who reports pursuant to this
20 section in good faith and without malice shall be immune from
21 any civil or criminal liability arising from such report.
22 Failure to provide such report within a reasonable time from
23 receipt of knowledge of impairment shall subject the person or
24 facility to a fine not to exceed $1,000. The board shall levy
25 this penalty only after affording the accused party the
26 opportunity for a hearing as provided in 2 Pa.C.S. (relating to
27 administrative law and procedures).
28 Section 19. Third-party reimbursement.
29 Nothing in this act shall be construed to require direct
30 third-party reimbursement to persons licensed under this act.
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1 Section 20. Appropriation.
2 The sum of $75,000 is hereby appropriated to the Department
3 of State for the administration of this act. The amount of
4 $75,000 shall be returned to the General Fund upon accumulation
5 of sufficient fees generated by this act.
6 Section 21. Effective date.
7 This act shall take effect as follows:
8 (1) Section 4 shall take effect in 120 days.
9 (2) Section 20 and this section shall take effect
10 immediately.
11 (3) The remainder of this act shall take effect in one
12 year.
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