RULES AND REGULATIONS
Title 49—PROFESSIONAL AND VOCATIONAL STANDARDS
STATE BOARD OF MASSAGE THERAPY
[ 49 PA. CODE CH. 20 ]
[41 Pa.B. 16]
[Saturday, January 1, 2011]
The State Board of Massage Therapy (Board) adopts §§ 20.1—20.54 to effectuate the Massage Therapy Law (act) (63 P. S. §§ 627.1—627.50).
The final-form rulemaking will be effective upon publication in the Pennsylvania Bulletin. The Board will publish applications for licensure on its web site after the final-form rulemaking has been approved by the Office of Attorney General; however, applications will not be processed until the final-form rulemaking is published in the Pennsylvania Bulletin.
Sections 4(2) and 50 of the act (63 P. S. §§ 627.4(2) and 627.50) require the Board to promulgate regulations to effectuate the act.
Summary of Comments and the Board's Response
The Board received comments from Elite Continuing Education, Ormond Beach, Florida, a company that offers both correspondence and classroom education throughout the United States. The company urged the Board to permit its licensees to complete up to 12 hours of the 24 hours of required continuing education biennially through correspondence courses. The company provided information regarding the continuing education requirements in other states and the number of hours that other states permit licensees to complete through online or other distance education modalities. The company also suggested that the Board consider contracting with a company that tracks continuing education hours and require continuing education providers to report licensee hours to the company, a process used in Florida, which would enable the Board to audit 100% of its licensees.
The American Massage Therapy Association (AMTA) also suggested that the Board increase the number of hours of continuing education that a licensee could earn from distance education. Because of the nature of the practice of massage therapy, the Board believes the majority of licensees' ongoing education should be obtained from sources where the instructor is in the room and able to observe the licensee and provide feedback. In response to the comments, the Board increased the number of hours that may be earned from distance education sources from 6 to 8 hours. The Board has rewritten the provision to require that licensees complete at least 16 contact hours of continuing education, as the Board has already defined contact hour to mean in the physical presence of the instructor.
An individual in Pittsburgh suggested that the requirement that massage linens be washed with bleach is unnecessary, bad for the environment and destructive of the sheets and that washing in hot water with appropriate detergent is more than sufficient. Given that massage linens are used on unclothed persons, the Board believes that linens should be washed with bleach to ensure that any microbes transferred to the linens are killed.
The Pennsylvania Association of Private School Administrators (PAPSA) sent numerous comments. PAPSA stated that other Board licensees are provided verification of license for free and asked if the Board could do the same. The licensees of the Board will be provided the same verification services as are licensees of other boards within the Bureau of Professional and Occupational Affairs (BPOA). State board licensees are listed on the searchable web site www.licensepa.state.pa.us. A fee is not charged to access this web site. The fee for license verification in § 20.3 (relating to fees) is the fee charged for formal verification by the Board office, which is sent on Board letterhead. This verification is generally required when a licensee seeks to obtain licensure by reciprocity to another state. If the other state is satisfied with verifying the license through the web site, the licensee will not need to obtain verification from the Board office or pay the fee for license verification.
Regarding § 20.12 (relating to information that must be provided to prospective students), PAPSA stated that schools accredited by the National Accrediting Commission of Cosmetology Arts and Sciences are required to provide an overall licensure pass rate to students for programs at the school and that those schools will then have to provide a separate licensure pass rate only for their massage therapy programs. PAPSA expressed concern that this could be confusing to students. Schools that are licensed by the State Board of Private Licensed Schools and approved to offer training in massage therapy will be required to report the pass rate of graduates from the massage therapy training program on the massage therapy licensure examinations. The Board does not believe that students will be confused if the school also reports its overall pass rate on other examinations.
Regarding § 20.13 (relating to required knowledge base), PAPSA next noted that there were online sites that offer Nationally-recognized CPR courses that lead to a certificate. PAPSA suggested that online CPR course should not be accepted because of their brief duration and lack of supervised practice. The Board agrees that CPR courses should be taken from sources where there is an instructor present to correct a licensee's technique. The Board added language to § 20.13 to clarify its intent. In addition, the Board notes that it will place on its web site the list of approved CPR courses and will not allow distance education for CPR training.
Regarding § 20.14(b) (relating to student practice), PAPSA noted that some school administrators expressed concerns about the schools' liability that might arise from assigning homework to massage family and friends under indirect supervision. This subsection does not require schools to assign the performance of massage tasks as homework. Schools that have this concern do not have to assign massage tasks for homework.
PAPSA asked for clarification regarding § 20.14(f), which requires a school to maintain records for services provided by students for 3 years. The 3-year period would begin at the last date of service. The Board added language to clarify its intent.
Regarding § 20.21(c) (relating to application for temporary practice permit, initial licensure and licensure by reciprocity), PAPSA asked whether associate degree students would be able to obtain licensure after completing 600 hours even though they still have a minimum of an additional 900 hours to complete to obtain their degree. The act requires that an individual complete a massage therapy program of at least 600 hours to be eligible for licensure. A student in a program of more than 600 hours would only be eligible for licensure if the school provided documentation that the student had completed the school's massage therapy program.
Regarding § 20.21(d)(3), PAPSA noted that massage therapy students were concerned that they might be unable to obtain a license because they were arrested or charged with a crime, although they were not convicted. PAPSA opined that the regulations extended the barrier to licensure for individuals who have been arrested or charged. PAPSA suggested that the provision should be changed to apply only to convictions and that the Board should provide guidelines for the review process of a conviction to help schools determine if a prospective student will be able to secure a license upon graduation. The act authorizes the Board to deny licensure only to individuals who have been convicted. The regulations do not expand the Board's authority. The act does not restrict the Board from obtaining information relevant to its mission of protecting the public. Obtaining this information from applicants will allow the Board to monitor the criminal process to ensure that it can take appropriate action if a licensee is convicted of a crime. The Board will limit the information that must be disclosed to criminal charges that have been filed. In addition, the Board will provide an explanation on its web site regarding its review of applicants with criminal records.
Regarding § 20.24 (relating to application requirements for existing practitioners), PAPSA asked whether applicants under section 5(b) of the act (63 P. S. § 627.5) would need to provide proof of CPR, submit a background check and provide proof of high school graduation or equivalent with their initial application. These applicants will be required to provide this information and any other information on the application form. Section 20.24(a) requires existing practitioner applicants to submit the information required under § 20.21(b), (c) and (d), which includes, in subsection (b)(1)—(4), a legal form of identification, a criminal history record information, CPR certification and proof of graduation from high school.
Regarding § 20.26(e) (relating to application requirements for temporary practice permits), PAPSA questioned the prohibition on temporary practice permit holders advertising their practice, holding themselves out as licensed massage therapists or using the initials L.M.T. PAPSA stated that a student could not build a practice and become gainfully employed if the student cannot market himself as a licensed massage therapist. Section 2 of the act (63 P. S. § 627.2) clearly defines a ''massage therapist'' as an individual who has been granted licensure by the Board. Neither students nor temporary practice permit holders have been granted licensure; therefore, neither students nor temporary practice permit holders may hold themselves out as licensed massage therapists or may advertise that they hold a license when they do not. Moreover, § 20.14 limits student practice. The normal process for a massage therapy student to obtain licensure should be quite short. The National Certification Board for Therapeutic Massage and Bodywork (NCBTMB) and the Federation of State Massage Therapy Boards (FSMTB) report test scores to the Board electronically and the Board can obtain test results on a daily basis. Therefore, a student who tests promptly after completing an educational program could obtain licensure within a matter of a few weeks.
Regarding § 20.33 (relating to continuing education content and providers), PAPSA asked whether at least 6 hours of pedagogical technique be counted towards meeting the continuing education requirement for massage therapy faculty. The act specifies that continuing education develop the skills as a massage therapist, not as a teacher. Therefore, massage therapy faculty will be required to take continuing education courses regarding massage therapy techniques, not teaching techniques.
PAPSA asked whether § 20.51(3) (relating to massage therapy treatment areas), which requires that massage therapy treatment areas provide ''illumination for cleaning,'' was a necessary provision. This paragraph requires that the illumination be adequate for the purpose of cleaning, meaning bright enough to determine areas that might need cleaning, which is a level of brightness not generally used in a treatment area during treatment.
The Pennsylvania Physical Therapy Association (PPTA) provided comments to the Board. PPTA stated its concern with § 20.41 (relating to scope of practice), specifically objecting to the list of soft tissue manifestations and the use of the words ''treat'' and ''treatment.'' PPTA also objected to the Board's use of the term ''therapeutic massage techniques.'' PPTA suggested that the term should be replaced with ''massage therapy techniques.'' PPTA suggested that the Board provide a definition of the term ''treatment plan.'' Regarding § 20.26, PPTA indicated confusion with what level of services an individual with a temporary practice permit was authorized to perform and suggested the Board further define the level of supervision required. Finally, regarding § 20.34 (relating to penalty for failure to complete continuing education), PPTA questioned whether an individual who had failed to complete required continuing education could practice on an expired license.
The Board received similar comments from the Insurance Federation of Pennsylvania (IFP) opposing proposed § 20.41, which IFP viewed as overly broad and vague. IFP suggested using ''tonic relief'' to describe the ''level of treatment'' to be achieved by massage therapy. IFP also suggested that the Board include the statutory limitation from section 17 of the act (63 P. S. § 627.17), which provides that licensure of massage therapists does not mandate insurance companies to provide new coverage for massage therapy services.
Representatives from PPTA and IFP did not attend the publicly announced meetings of the Board on June 29 and 30 and July 7, when the Board discussed these comments and its responses. The Board thoroughly addressed the comments from PPTA and IFP in this preamble, and, on September 15, 2010, delivered the final rulemaking and other regulatory documents to the House Professional Licensure Committee (HPLC), the Senate Consumer Protection and Professional Licensure Committee (SCP/PLC) and the Independent Regulatory Review Commission (IRRC). On that same date, the Board advised commentators that the final rulemaking package had been delivered and directed commentators to IRRC's web site to view the final rulemaking package. The HPLC was scheduled to meet to consider the final rulemaking on September 28, 2010.
On September 24, 2010, PPTA and IFP wrote to the HPLC and objected to the Board's final rulemaking package and urged the HPLC to disapprove the rulemaking and to express its disapproval to IRRC. In its September 24, 2010, letter, PPTA reasserted that the Board's list of soft tissue manifestations should be stricken. PPTA also restated its objection to the Board's use of ''treat,'' ''treatment'' and ''therapeutic massage techniques.'' In its September 24, 2010, letter to the HPLC, IFP stated that the Board should strike its list of soft tissue manifestations. In addition, IFP renewed its request that the regulations repeat section 17 of the act.
On September 29, 2010, representatives of the HPLC and Legislature met with representatives of the Department of State, the Board, the Pennsylvania Massage Therapy Association, PPTA and IFP to discuss the concerns. The HPLC then asked the Board to withdraw the regulations. The Board agreed. The Board announced that it would meet in special session on October 12, 2010, to discuss possible amendments.
By way of letters dated October 8, 2010, received by the Board on October 12, 2010, PPTA and IFP provided additional comments to the HPLC and the Board. In its October 8, 2010, letter, PPTA provided its suggestion for the regulatory definition of massage therapists' scope of practice. PPTA suggested the Board delete references to ''treatment'' or ''pain'' and also asserted that the Board should delete references to ''treatment objectives'' in the final-form rulemaking. In its October 8, 2010, letter, IFP endorsed the changes proposed by PPTA and proposed additional amendments. First, IFP proposed that the Board delete statements suggesting that massage therapists ''treat'' soft tissue manifestations and instead state that massage therapists ''provide palliative treatment'' to soft tissue manifestations. IFP also proposed changes to the scope of practice proposal made by the HPLC.
The Board met on October 12, 2010, and discussed the proposals by PPTA, IFP and the HPLC. The Board entertained comments from the representatives of the HPLC and PPTA. The Board will generally accept the proposals made by PPTA, IFP and the HPLC and amend § 20.41(a). However, rather than create a new definition when ''massage therapy'' is already defined in the act, Board will amend this subsection to track the language in section 2 of the act. The Board rejects the suggestions of deviating from the statutory language ''treatment of the soft tissue manifestations of the human body'' to refer to ''tonic treatment'' or ''palliative treatment.'' In addition to tracking the statutory language in § 20.41(a), the Board will delete the list of soft tissue manifestation which limited massage therapy practice in the proposed rulemaking. By deleting the list of soft tissue manifestations, the emphasis of the scope of practice provision is shifted to the ''structured system of touch, pressure movement, holding and treatment'' in the act and away from the Board's prior emphasis on what is touched, applied pressure, moved, held or treated. The system of touch, pressure, movement, holding and treatment that traditionally comprise Western massage therapy includes both soft tissue manipulation (effleurage, petrissage, tapotement, vibration and friction) and active and passive joint movements. The act also specifically includes lymphatic techniques and myofacial release techniques in the definition of ''massage therapy.'' Tracking the statutory language in the regulation neither enlarges nor contracts the scope of practice permitted under the act. The Board will retain § 20.41(b), which provided for both the statutory prohibitions on massage therapists' practice and additional regulatory prohibitions. The Board also adds new subsection (c) that tracks section 17 of the act.
Regarding the use of ''therapeutic massage techniques,'' the Board recognizes that this terminology may be overly restrictive because these techniques comprise only a part of massage therapy practice and massage therapists may employ massage therapy techniques that are not considered ''therapeutic massage techniques.'' As noted by PPTA, physical therapists are also authorized to provide massage under section 2 of the Physical Therapy Practice Act (63 P. S. § 1302), which defines ''physical therapy'' to include ''the treatment of the individual through the utilization of the effective properties of physical measures such as . . . massage . . . .'' Other licensed professionals may also employ some therapeutic massage techniques. See, for example, section 2 of The Professional Nursing Law (63 P. S. § 212), which defines the ''practice of professional nursing'' to include ''treating human responses to actual or potential health problems through such services as . . . provision of care supportive to or restorative of life and well-being.'' The Board will change ''therapeutic massage techniques'' to ''massage therapy'' throughout the final-form rulemaking. This will also eliminate the need to define ''therapeutic massage techniques.'' Finally, the Board amends ''treatment plan'' to ''massage therapy treatment plan.''
In its comments on the proposed rulemaking and in its September 24, 2010, letter, PPTA objected to allowing an applicant to practice without supervision for up to 6 months after graduation from a massage therapy program but before passing a licensure examination. The act does not limit the practice of temporary practice permit holders; therefore, the Board did not limit the practice of these individuals. Unlicensed persons, including temporary practice permit holders, are forbidden from using the title ''L.M.T.'' or holding themselves out as licensees.
FSMTB also submitted comments. FSMTB opined that the Board should accept only the Massage and Bodywork Licensure Examination (MBLEx), which is offered by FSMTB. The act recognizes the two examinations offered by the NCBTMB as well as the MBLEx. The Board believes it is constrained to do the same.
FSMTB pointed out a typographical error when the Board referred to the organization as ''FSBMT.'' The error has been corrected.
FSMTB pointed out that fees paid to it are refunded, minus a processing fee. The Board made this correction by deleting § 20.23(d) (relating to licensure examinations).
FSMTB noted that it does not restrict the number of times a candidate can fail the MBLEx without having to undertake some intervention before subsequent attempts. FSMTB opined that it would be difficult for the Board to monitor compliance with its limitation in § 20.23(e), and that attempting to enforce the provision could result in the disparate treatment of applicants for licensure by examination and applicants for licensure by reciprocity. The Board agrees and deleted § 20.23(e) from the final-form rulemaking.
Regarding § 20.33, FSMTB asked that it be added to the list of preapproved providers of continuing education, even though FSMTB does not currently provide continuing education review and approval services and apparently does not have definite plans to do so. The Board believes it would be inappropriate to prospectively approve FSMTB's continuing education process before it has been developed.
AMTA submitted comments on several sections of the proposed rulemaking. Regarding § 20.24, AMTA opined that a student who will graduate from a massage therapy education program ''on or before the approval and passage of these rules and regulations'' should be included as an existing practitioner. AMTA also stated that ''many of the students begin working for employers in the state in the latter portions of their programs. Excluding them would greatly affect business at these establishments and place an undue burden on a student who until this point would have been grandfathered in.''
Subsection 5(b)(1) of the act requires an individual seeking licensure as an existing practitioner to, on the effective date of the subsection, ''demonstrate that the applicant has conducted a business and been an active participant in that business which was mainly the practice of massage therapy.'' The subsection became effective on October 9, 2010. Individuals who can demonstrate that they were in the active practice of massage therapy on that date, and who comply with the other provisions of the act, can be considered existing practitioners. The effective date of the final-form rulemaking does not affect an individual's status as an existing practitioner. Once the regulations have been passed, § 20.14 will prohibit massage therapy students from practicing except in the clinical training program operated by the student's school. Students are permitted to practice specific techniques that are being learned as part of the massage therapy education program, but may not receive any compensation, including a gratuity, for practicing these techniques. Therefore, once the regulations become final, students will no longer be able to be employed as massage therapists.
AMTA next expressed concern about individuals who have taken a maternity leave or a sick/short-term disability leave during the last 5 years and questioned whether these individuals could qualify for licensure under section 5(b) of the act. One of the ways that an existing practitioner can qualify for licensure is if the existing practitioner can demonstrate that he has been in ''active, continuous practice for at least 5 years immediately preceding the effective date of this section.'' The final-form rulemaking, which allows a practitioner to demonstrate the required 5 years of practice through tax documents and other means, allow an individual to obtain licensure even if the individual took a period of maternity leave. Several other licensing boards have period of practice requirements and the Board is not aware of any difficulties in determining whether an applicant is qualified for licensure despite having taken maternity or a short term disability leave.
AMTA next explained its historic levels of membership and asked for applicants who were at the associate level in 2007 to be permitted to use that membership level to show the first of the past 5 years as a practitioner. Associate level membership was for students and new graduates, but was discontinued on November 30, 2004. After November 20, 2007, individuals were required to participate at the professional level. It is the Board's understanding that AMTA requires, as a prerequisite to professional level membership, that an individual have completed a minimum of 500 hours of massage therapy instruction or hold a National certification. Therefore, professional members of AMTA will qualify for licensure under section 5(a)(3)(iii) of the act and do not need to apply for licensure under section 5(a)(3)(i) of the act.
AMTA suggested that the Board increase the number of continuing education hours that can be completed online to 8 hours. The Board has done so. AMTA questioned how the Board would address individuals with disabilities such as deafness who rely on online continuing education and whether requirements would be placed on continuing education providers to make accommodations for those who are disabled. A mechanism is provided in 1 Pa. Code Part II (relating to General Rules of Administrative Practice and Procedure) by which an individual may request a waiver of a regulatory provision when the individual's circumstances frustrate compliance. The Board will strive to be considerate and treat licensees fairly. As for requiring, through its regulations, continuing education providers to provide accommodations for the disabled, the Board believes that Federal law governs the provision of accommodations.
AMTA also queried whether working toward a degree in a related field, such as kinesiology, at a 2- or 4-year college could count toward meeting the continuing education requirement. The act requires that continuing education courses be related to massage therapy practice. Not all classes in fields such as kinesiology are related to massage therapy practice. An individual may apply to the Board to receive continuing education credit for college courses and provide a detailed syllabus that will allow the Board to determine if continuing education credit can be granted.
Finally, AMTA noted that some of its members expressed concern about the number of continuing education hours required by the Board. The General Assembly determined the number of hours required biennially and the Board cannot deviate from that number.
Regarding § 20.41, AMTA stated that some people hold dual positions within their offices and asked how this would be regulated as to what services they can do and when they can do those services. AMTA gave the example that in the cosmetology field esthetics must be done in a separate room from massage therapy and asked if the individual holds both licenses, can they perform esthetics and massage in the same room. AMTA also asked whether a massage therapist who is also a chiropractic assistant can use devices such as a muscle stimulation unit. Each licensing board regulates the practice of a particular profession or occupation with a defined scope of practice. While practicing and holding oneself out as a massage therapist, an individual shall practice within the scope of practice of a massage therapist. If the same individual also holds another license, that individual can practice within the scope of that license when practicing the other profession and holding himself out as that type of licensee. It is the Board's understanding that the State Board of Cosmetology restricts the practice of cosmetology and its related subfields, such as esthetics, to the floor space of the cosmetology salon. Therefore, it would appear to the Board that massage therapy cannot be practiced within the floor space of the cosmetology salon, regardless of who is performing the massage therapy services. The Board is not familiar with the scope of practice of a chiropractic assistant but would reiterate its opinion that individuals may practice within the scope of practice of the profession or occupation they are practicing and holding themselves out as practicing during any period of time.
Regarding § 20.42(a)(14) (relating to standards of professional conduct), which requires a licensee to display his license in a location clearly visible to clients, AMTA expressed concern with listing the licensee's home address on documents that would be in the plain sight of clients. The Board does not require the licensee to display their home address in plain sight of clients; in fact, the Board would encourage licensees to cover their home addresses, such as with black construction paper, when displaying their licenses. However, licenses must be displayed so that the public can know that an individual possesses the license.
Regarding § 20.42(a)(15), which requires licensees to include their license number in advertisements, AMTA asked whether a massage therapist who works for a spa has to have the therapist's license number posted in the spa's advertisement and asked how would a spa with multiple therapists be required to post each therapist's number in the advertising. The provision provides for what a massage therapist shall do; it does not regulate spas. If a massage therapist advertises his practice, the massage therapist shall include the license number in the advertisement. If a business, such as a spa, advertises massage therapy services without naming a massage therapist, the spa is not subject to the regulation. The Board notes, however, that businesses providing massage therapy may only provide massage therapy by licensed individuals.
The Board received a comment from an individual asking the Board to amend the medical device restriction to be open ended, specifically so that licensees could use Spray and Stretch topical anesthetic skin refrigerant. According to the commenter, the product was classified as a medical device by the United States Food and Drug Administration under the authority to approve prescription devices used by health care practitioners under 21 CFR 801.109 (relating to prescription devices). The General Assembly defined ''massage therapy'' to exclude massage therapists from practicing medicine or using medical procedures or prescribing medicines for which a license to practice the healing arts is required. Massage therapists are not considered practitioners of the healing arts in this Commonwealth and are not permitted to use medical devices in their practice.
On June 9, 2010, the HPLC voted not to take formal action on the Board's proposal until the final rulemaking was submitted and provided the Board with five comments. First, the HPLC requested that the Board define ''treatment plan'' and asked why a massage therapy student would be developing or modifying a treatment plan on his own. The Board added a definition for the term. Section 20.13 requires a massage therapy education to provide students with skills in the area of the development, implementation and modification of treatment plans. The Board's proposed rulemaking did not allow a massage therapy student to develop or modify a treatment plan on his own. Proposed § 20.14 did not mention treatment plans.
The HPLC next asked the Board to explain its rationale for the inclusion of business subjects in the knowledge base curriculum and continuing education courses for massage therapy. The HPLC commented that this inclusion is inconsistent with continuing education courses of other professions or occupations when business management courses, in particular, are prohibited. The final-form rulemaking provides for at least 25 contact hours of education, out of the minimum 600 hours of required instruction, in professional ethics, and business and law regarding a massage therapy business. Because many massage therapists run their own businesses, the Board believes that some minimal amount of education should be provided to students to give them a better chance of being successful in their practice. Section 20.33(a) requires that creditable continuing education ''be designed to advance the licensee's professional knowledge and skills related to the practice of massage therapy as defined in section 2 of the act.'' In response to a commenter's suggestion that the Board should allow a business class to be creditable toward the continuing education requirement, the Board, in the preamble to the proposed rulemaking, noted that the act ''restricts the granting of credit for taking courses to build one's business.'' The Board does not believe that the proposed rulemaking indicated that business courses constitute creditable continuing education.
The HPLC noted that a procedure was not presented for licensure by endorsement and that § 20.21 is referenced in § 20.26(b). The Board used ''reciprocity'' and ''endorsement'' interchangeably. The Board conformed its language use to the act, which uses ''reciprocity.''
The HPLC next questioned whether an applicant whose license is refused has due process rights to appeal after unfavorable results from the hearing. The hearing is the Board's provision of the applicant's due process right to be heard. Under 2 Pa.C.S. § 702 (relating to appeals), aggrieved parties have the right to appeal a final determination by a governmental unit to Commonwealth Court.
Finally, the HPLC questioned the definition of ''contact hour'' in § 20.1 (relating to definitions), which combines the length of time (50 to 60 minute period of instruction) and the circumstances (in the physical presence of an instructor or supervisor) and § 20.32(b) (relating to continuing education hours, maintenance of certificates of completion) provides for a maximum of 6 hours of continuing education in correspondence courses. The HPLC questioned whether the correspondence courses are in 50 to 60 minute periods to meet the quantitative aspect of the definition. The Board anticipates that the course provider would determine the amount of content that would take an average person 50 to 60 minutes to work through, as is done by the boards within the BPOA. For clarity, the Board rewrote § 20.32(c) to delete the reference to correspondence courses and instead refer to the number of hours that shall be taken as ''contact hours,'' a term defined in § 20.1. In addition, the Board deleted ''contact'' from § 20.32(b), which was inadvertent; ethics courses do not need to be taken in the physical presence of the instructor, a requirement most relevant to therapeutic technique classes.
IRRC submitted comments on July 7, 2010. IRRC recommended that the Board define ''soft tissue manifestations,'' ''therapeutic massage techniques,'' ''treatment,'' and ''treatment plan.'' The Board attempted to define ''soft tissue manifestation'' by listing manifestations that massage therapists could treat. The regulation has since been amended. Because the General Assembly used the term ''soft tissue manifestations'' in the act and did not define it, the Board will not again define the term after the HPLC requested that the definition be amended. The term ''therapeutic massage techniques'' is no longer used and does not need to be defined. The Board defined ''treatment'' and ''massage therapy treatment plan'' consistent with the act.
IRRC next commented that the Board's definition of ''sexual harassment'' should refer to conduct that is ''unwanted'' or ''unwelcome'' because Human Relations Commission provisions regarding unlawful employment actions use these terms. The Board disagrees that these terms belong in regulations governing the conduct of massage therapists. On the contrary, a massage therapist is prohibited from deliberate physical contact of a sexual nature with a client even if the contact is ''wanted'' or ''welcome'' because professional ethics prohibit this type of personal contact within the professional relationship.
IRRC asked how the Board determined that the proposed fees were appropriate. Regarding the reasonableness of its fees for services in § 20.3, the Board based the fees on reports made by the Department's revenue office. Fee report forms showing the costs for providing the services were attached to the Regulatory Analysis Form required under the Regulatory Review Act (71 P. S. §§ 745.1-745.12) and IRRC's regulation in 1 Pa. Code § 307.2(c)(1) (relating to delivery of a final-form regulation). The fee report forms show the amount of time expended in processing fee for service items and the amount of overhead charged based on that amount of time.
With regard to education programs under § 20.11 (relating to minimum hour requirements for massage therapy programs), IRRC asked how the Board determined the appropriate number of hours in each subject area that a massage therapy curriculum would be required to provide. The Board reviewed the standards set by massage therapy education program accrediting bodies and the regulations of other states. The Board's final-form rulemaking reflects industry standards for the number of hours in particular subject areas for a massage therapy curriculum.
Regarding § 20.13, IRRC asked for more specificity regarding the legal requirements to be taught to massage therapy students in schools this Commonwealth. The Board amended § 20.13 to refer to Pennsylvania legal requirements, which include licensure requirements and standards of conduct. IRRC also asked the Board to add language to clarify what level of ''knowledge'' massage therapy education shall provide to its students. The Board declines to add clarifying language because it believes that massage therapy schools already know that they shall educate their students sufficiently to enable the students to pass a licensure examination and practice massage therapy.
Regarding student practice, IRRC asked what was the basis for the 3-year time period to maintain records of student practice in a school's clinical program. The Board based the time period on the 2-year tort statute of limitations and added an additional year. IRRC also suggested relating the provision to the date of service. As previously noted in the response to a similar suggestion from PAPSA, the Board added language to inform the regulated community that records shall be kept for 3 years from the last date of service.
Regarding § 20.14(g), IRRC suggested that the final-form rulemaking include the means by which schools could comply with the requirement that students be identified as students when they are performing services in a student clinic. The Board believes that the schools already identify student clinics as such and that each school can determine the best way to identify students. Some ways already in use include signs, nametags and requiring clients to sign an acknowledgement that a student will perform the massage.
IRRC raised the same concern as the HPLC regarding the Board's interchangeable use of ''endorsement'' and ''reciprocity'' in § 20.21. The Board made the language consistent in the final-form rulemaking. IRRC questioned how the Board determined that requiring criminal history records for every state the applicant had lived for the past 5 years was an appropriate limit on the years of review. The provision is for verification purposes only; an applicant is required to disclose criminal convictions. Criminal history records show all convictions, even those that occurred 15 or 20 years ago. The 5-year limitation is geographical and the Board's thinking is that if an applicant is moving from state to state to avoid detection of a criminal history, he would likely move more often than every 5 years.
IRRC asked about the Board's requirement that applicants disclose arrests. This issue was addressed in response to the same inquiry by PAPSA. IRRC erroneously states that the act only permits the Board to refuse licensure to an applicant who has been convicted of a felony under The Controlled Substance, Drug, Device and Cosmetic Act (35 P. S. §§ 780-101—780-144) or comparable law in another jurisdiction or the United States. However, section 9(a)(1) of the act (63 P. S. § 627.9(a)(1)) authorizes the Board to refuse licensure to an applicant who has been convicted of a crime of moral turpitude or an offense that would constitute a felony in this Commonwealth. In addition, section 5(a)(1) of the act requires that applicants demonstrate good moral character.
Regarding § 20.21(d)(4) and (5), IRRC also questioned whether a licensed professional would make the determination of whether an applicant is unable to practice with reasonable skill and safety due to mental or physical conditions or impairment based on the use of drugs or alcohol. Individuals would be referred to the Professional Health Monitoring Program and an appropriate professional would conduct the evaluation. However, if an applicant contests the findings, a hearing is held before the Board and the applicant may present expert testimony on the subject of their ability to practice safely. Other licensing boards that have successfully used this process for many years do not provide extensive regulatory provisions regarding these matters and the Board does not believe there is a need for these regulations to include extensive sections regarding these matters. Finally, IRRC suggested that the Board delete the phrase ''any other type of material'' from subsection (d)(4) because it is vague. The phrase comes directly from the act and thus is retained.
IRRC next asked for the basis for a 6-month period of time for an applicant to supply missing documentation for an application. The time period was chosen to conform to the length of time that an applicant can practice on a temporary practice permit.
IRRC also suggested that § 20.22 (relating to procedure for licensure denial) reference who will conduct evaluations and licensee appeal rights. The Board added a reference to the Professional Health Monitoring Program and to section 9(c) of the act. IRRC asked whether an applicant would be notified of the results of an evaluation. The applicant would have to obtain the evaluation directly from the evaluator.
IRRC questioned the 90-day time frame for applicants to reapply for the examinations; these are requirements of the testing organizations placed in the regulations to inform applicants. The Board corrected the typographical reference to FSMTB. IRRC also questioned the process of monitoring the additional hours of instructions required under § 20.23(e) for applicants who have failed a licensure examination multiple times to obtain additional hours of instructions. The Board removed the limit on the number of times an applicant could fail the examinations before being required to take more coursework.
IRRC questioned the Board's use of the date October 9, 2010, in § 20.24(c). The date is required under the act. IRRC, like AMTA, asked about new graduates; the Board addressed this issue in its response to AMTA's comments. IRRC also suggested that the Board define ''existing practitioners.'' The Board believes this term is defined in the act.
IRRC next asked what services could be performed by a temporary practice permit holder. The act does not limit the services and the Board does not believe that the services should be limited.
Regarding § 20.32(g), IRRC asked under what circumstances the Board would determine an audit was necessary. A certain percentage of the licensee population will be audited at random, as is done by most of the licensing boards.
Regarding § 20.41, IRRC asked how the Board would regulate ''overlapping licensure.'' The Board can only regulate the practice of massage therapy; other licensing boards regulate the practice of the professions they oversee. IRRC also recommended that the Board, in its final-form rulemaking, set forth a list of services that dual licensees can perform. The Board cannot define in regulation what services dual licensees can perform; it can only define what services licensed massage therapists can perform. The Board believes its regulation sets forth the scope of practice of licensed massage therapists consistent with the act.
Regarding § 20.42, IRRC asked how the Board would address a situation if a soft tissue manifestation is also a symptom of an underlying condition. The Board is aware that soft tissue manifestations may be symptoms of an underlying condition; for example, some massage therapists provide services solely on referral from a physician and report to the referring physician. The act authorizes licensed massage therapists to apply a system of structured touch, pressure, movement, holding and treatment of the soft tissue manifestations of the human body with the primary intent to enhance health; thus, while a licensed massage therapist does not treat an underlying disease, a licensed massage therapist does provide treatment to soft tissue manifestations to enhance health by treating the soft tissue manifestations of an underlying disease. Section 20.42(a)(5) requires a licensed massage therapist to refer a client to an appropriate health care profession when indicated. If a complaint were filed against a licensee regarding licensee misconduct or a licensee exceeding the permitted scope of practice, the Board would hold a hearing to determine the facts and issue an adjudication, as required under 2 Pa.C.S. §§ 501—508 and 701—704 (relating to the Administrative Agency Law). The Board has the authority to discipline a licensee who exceeds the scope of practice of a licensed massage therapist.
Finally, IRRC asked how a massage therapist would act to safeguard a client from incompetent, abusive or illegal practices, as required under § 20.42(a)(11). By way of example, the Board would point to Stephens v. State Board of Nursing, 657 A.2d 71 (Pa. Cmwlth. Ct. 1995), wherein the Commonwealth Court affirmed a decision of the State Board of Nursing disciplining a licensee for failing to safeguard a patient from incompetent or abusive practices when a nurse waited 10 minutes before intervening on a patient's behalf when a nurse aide was teasing a patient and failed to report the nurse aide to the facility. A licensed massage therapist might fail to safeguard a client if the licensed massage therapist witnessed another licensed massage therapist or other health care worker, such as a nurse aide or physical therapist, abusing a patient and failed to intervene and report the matter to the proper authorities.
During its review of the rulemaking at its October 12, 2010, meeting, the Board corrected § 20.21(b)(2). The subsection required applicants to have the State Police send the applicant's criminal history record directly to the Board; however, the Board recently learned that the state policy would release the criminal history record only to the applicant. The amended version will permit an applicant to obtain his record and forward the record to the Board.
The Board made additional amendments for clarity. First, in § 20.3, the Board added a fee for the application for a temporary practice permit which had been inadvertently omitted from the proposed rulemaking. In addition, in describing the fee for verification of licensure, the Board added the terminology of a ''letter of good standing,'' which is the terminology used in many other states to describe what boards in the BPOA refer to as verification of licensure.
The Board amended § 20.13(a)(6) to add ''Pennsylvania'' to ''legal requirements'' since Pennsylvania massage therapy education should provide students with knowledge about Pennsylvania requirements. Subsection (a)(9) was amended from ''basic CPR'' to ''CPR resulting in a Board-approved certification'' to add clarity. Board-approved CPR sources have been noted on the Board's web site. Subsection (c)(4) was amended to correct a typographical error where ''decision making'' was inadvertently left in the sentence after ''utilizing . . .'' was added to conform the paragraph to the other paragraphs in subsection (c). Subsection (c)(6) was amended to correct an incorrect reference.
In § 20.14, the Board amended subsection (c) to incorporate the substantive provisions of subsections (d) and (e) and deleted subsections (d) and (e). The addition of ''or other source'' was to encompass any other way that a payment might be set up, such as from the clinic as an entity. Subsection (e) is unnecessary as the prohibition in subsection (c) covers what was prohibited by subsection (e).
The Board deleted the reference to providing documents regarding an applicant having been arrested from § 20.21(d)(3). The Board was informed that the charging documents are the first official documents regarding a criminal complaint, not arrest documents.
In § 20.22, the Board provided additional information regarding how an applicant would participate in an evaluation; specifically, the applicant would contact the BPOA's Professional Health Monitoring Program. The Board added this information so an applicant would know what part of the BPOA to contact if the applicant wished to discuss an impairment issue before applying for licensure.
The Board also made minor amendments to § 20.24. First, in § 20.24(c)(2), the Board added the requirement that an applicant sign the copy of Federal tax form Schedule C if the applicant submits that form. The Board added the signature requirement to conform § 20.24(c)(2) and § 20.24(c)(1), which required that Federal tax returns be signed. In addition, the Board amended § 20.24(c)(3) to require that the proof of membership in a Board-approved professional association be sent directly from the association. This requirement will eliminate the ability of an applicant to provide fraudulent documentation. The same requirement for direct production of documents was added to § 20.24(f) regarding the transcript from an educational institution.
In § 20.31(a) and (b) (related to expiration, renewal and reactivation of license), the Board added the license expiration and renewal dates as the approximate date that the rulemaking is likely to become final is now known. In § 20.31(d), the Board separated out reporting requirements that had previously been together. The separation allowed the Board to draw more attention to each separate requirement. A longer period was allowed for reporting reciprocal discipline, as this is generally less serious. In subsection (e), language was changed from referring to a ''wall certificate'' to an ''updated license'' to reduce confusion about what a wall certificate might be. If a wall certificate is issued by the Board, it is only issued once, upon initial licensure. The Board also deleted the reference in subsection (f) to ''signed'' in a requirement that a document be both signed and notarized. ''Signed'' was removed because ''notarized'' implies signed; a notary notarizes a signature.
For clarity, the Board amended § 20.32 (related to continuing education hours, maintenance of certificates of completion) at subsection (c) to state the requirement in a positive statement rather than a negative statement. Subsection (d) was clarified to require CPR courses to be taken through contact hours, not online courses, to reflect the Board's belief that CPR is best learned through a ''hands on'' experience.
The Board amended § 20.33(d) to provide that the Board's approval of a proposed continuing education course would be valid for 2 years from the date the course is first given for credit provided the faculty and learning objectives are unchanged. The Board thought it would have been overly restrictive to have its approval of a course valid for only one presentation of the course and would have placed an undue burden on a course provider to reapply for approval if the provider wanted to present the same course more than once. On the other hand, the Board thought some time limit was appropriate. The Board determined that a 2-year approval period would adequately address both concerns.
Finally, the Board amended § 20.34 based on PPTA's concern that the this section would permit an individual to practice when his license is expired. Massage therapy licensees are not permitted to practice on an expired license. The imposition of a civil penalty for failure to complete mandatory continuing education is the most common form of discipline imposed by all licensing boards in the BPOA. The Board is not clear what additional penalty PPTA believes should be imposed against massage therapy licensees who fail to complete continuing education. The continuing education model in the proposed rulemaking was relatively new and was adopted by the State Board of Nursing. The Board determined that it should adopt the more traditional model, which is used by the State Board of Physical Therapy, because it is easier to understand. Therefore, § 20.34(b)—(d) was deleted and subsection (a) was amended.
Fiscal Impact and Paperwork Requirements
The final-form rulemaking will have a fiscal impact on massage therapists because there is a cost to licensure and license renewal. Fees, except biennial renewal fees, are based on an estimate of the amount of time required to perform the service to an individual and the type of staff required to perform the service. Biennial renewal fees are developed by the BPOA's Bureau of Finance and Operations and are used to sustain the day-to-day operations of the Board. The final-form rulemaking may have a fiscal impact on individual licensees if massage therapists do not already abide by the minimum safety and cleanliness requirements set forth by the Board. Minor paperwork and recordkeeping requirements are placed on massage therapy schools and providers of continuing education for massage therapists.
The final-form rulemaking will not otherwise have fiscal impact nor impose additional paperwork on the private sector, the general public or the Commonwealth and its political subdivisions.
The Board continuously monitors its regulations. Therefore, a sunset date has not been assigned.
Under section 5(a) of the Regulatory Review Act (71 P. S. § 745.5(a)), on April 27, 2010, the Board submitted a copy of the notice of proposed rulemaking, published at 40 Pa.B. 2428 (May 8, 2010), to IRRC and the Chairpersons of the HPLC and the SCP/PLC for review and comment.
Under section 5(c) of the Regulatory Review Act, IRRC, the HPLC and the SCP/PLC were provided with copies of the comments received during the public comment period, as well as other documents when requested. In preparing the final-form rulemaking, the Board has considered all comments from IRRC, the HPLC, the SCP/PLC and the public.
Under section 5.1(j.2) of the Regulatory Review Act, on November 17, 2010, the final-form rulemaking was deemed approved by the HPLC. On November 17, 2010, the final-form rulemaking was deemed approved by the SCP/PLC. Under section 5.1(e) of the Regulatory Review Act, IRRC approved the final-form rulemaking on November 18, 2010.
Under section 5.1(j.2) of the Regulatory Review Act, on November 17, 2010, the final-form rulemaking was deemed approved by the HPLC and the SCP/PLC. Under section 5.1(e) of the Regulatory Review Act, IRRC met on November 18, 2010, and approved the final-form rulemaking.
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