RULES AND REGULATIONS

BUREAU OF PROFESSIONAL AND OCCUPATIONAL AFFAIRS

[ 49 PA. CODE CH. 43b ]

Schedule of Civil Penalties—Massage Therapists

[46 Pa.B. 7274]
[Saturday, November 19, 2016]

 The Commissioner of Professional and Occupational Affairs (Commissioner) deletes § 43b.23 and adds § 43b.23a (relating to schedule of civil penalties—massage therapists) to read as set forth in Annex A.

Effective Date

 This final-form rulemaking will be effective upon publication in the Pennsylvania Bulletin. The schedule of civil penalties will apply to violations that occur on or after the effective date.

Statutory Authority

 Section 5(a) of the act of July 2, 1993 (P.L. 345, No. 48) (Act 48) (63 P.S. § 2205(a)) authorizes the Commissioner, after consultation with licensing boards in the Bureau of Professional and Occupational Affairs (Bureau), to promulgate a schedule of civil penalties for violations of the acts or regulations of the licensing boards.

Background and Need for this Final-Form Rulemaking

 Act 48 authorizes agents of the Bureau to issue citations and impose civil penalties under schedules adopted by the Commissioner in consultation with the Bureau's boards and commissions. Act 48 citations streamline the disciplinary process by eliminating the need for formal orders to show cause, answers, adjudications and orders, and consent agreements. At the same time, licensees who receive an Act 48 citation retain their due process right to a hearing prior to the imposition of judgment. The use of Act 48 citations has increased steadily since 1996, when the program was first implemented, and they have become an important part of the Bureau's enforcement efforts.

 Upon consultation with a representative of the Commissioner, the State Board of Massage Therapy (Board) determined that it should utilize the Act 48 citation process to decrease costs to its licensees and more efficiently conduct its duties. The Board has participated in the Act 48 citation program since 2010, when the Commissioner adopted the statement of policy in § 43b.23 setting forth a schedule of civil penalties for a number of offenses. At this time, the Commissioner and the Board believe it is necessary to promulgate the schedule of civil penalties by regulation and make certain revisions to improve their deterrent effect. To that end, this final-form rulemaking establishes a schedule of civil penalties for four general categories of matters that routinely arise before the Board: cases involving licensure display or improper advertising; cases involving unlicensed individuals holding themselves out as licensed; cases involving individuals practicing while their licenses are lapsed/expired/inactive; and cases involving violations of the continuing education and CPR requirements.

Summary of Comments and the Board's Response

 Notice of proposed rulemaking was published at 44 Pa.B. 5487 (August 16, 2014), with a 30-day public comment period. On August 18, 2014, the Commissioner received a comment from Ed Portley, a licensed massage therapist and continuing education provider, who commended the Board for ''considering the increase in civil penalties for violations to the massage therapy law. It is my opinion that the previous fees were not much of a deterrent to individuals who find licensure an inconvenience.'' As a result of the public comment, the Commissioner and the Board reconsidered the proposed rulemaking and determined that it was necessary to increase the civil penalties for unlicensed practice to further enhance the deterrent effect. First, the Commissioner increased the civil penalty for a violation of section 14(a) of the Massage Therapy Law (act) (63 P.S. § 627.14(a)) from $500 to $1,000 for a first offense of holding oneself out as a massage therapist or practicing massage therapy while unlicensed. Likewise, the Commissioner increased the civil penalty for violation of section 14(c) of the act from $500 to $1,000 for a first offense of employing an individual in massage therapy who is not licensed. The Commissioner, in consultation with the Board, reasoned that these two offenses are serious offenses and the civil penalty should be more of a deterrent to individuals who might violate these sections of the act.

 Neither the House Professional Licensure Committee (HPLC) nor the Senate Consumer Protection and Public Licensure Committee (SCP/PLC) submitted comments on the proposed rulemaking. However, on October 15, 2014, the Independent Regulatory Review Commission (IRRC) submitted comments to the Commissioner. The first three comments from IRRC related to citations to the act, and the Commissioner made necessary corrections. In addition to the edits suggested by IRRC, the Commissioner added cross-references to section 4(6) of the act (63 P.S. § 627.4) and § 20.32(a) (relating to continuing education hours, maintenance of certificates of completion) to support the civil penalty schedule for failure to complete 24 hours of continuing education courses. The Commissioner and the Board agreed that reference to section 14 of the act was too broad with regard to the violation of holding oneself out as a massage therapist or practicing massage therapy while unlicensed and has limited the statutory provision to section 14(a) of the act. Finally, the Commissioner and the Board agree that section 14(b) of the act is not relevant to the offense of holding oneself out as a licensed massage therapist while one's license is expired. Section 14(b) of the act expressly permits one whose license is maintained in inactive status to use various titles or otherwise hold oneself out as a massage therapist. A person whose license is expired is similarly situated as one whose license is inactive. Therefore, the Commissioner, in consultation with the Board, deleted the proposed civil penalty from this final-form rulemaking.

 In its last comment, IRRC noted that section 14(e) of the act describes three conditions in the requirement to practice with ''a valid, unexpired, unrevoked and unsuspended license,'' while the proposed rulemaking only set forth a civil penalty for practicing on an expired license. IRRC suggested that all three license statuses be addressed in the schedule. The Board and the Commissioner chose not to establish a schedule of civil penalties for practicing on a revoked or suspended license because these are more egregious offenses than practicing on an expired license, which may have occurred due to an oversight. Under section 5(a) of Act 48, the maximum civil penalty that may be imposed by citation is only $1,000, while the maximum civil penalty that may be imposed by the Board in a formal disciplinary proceeding is $10,000 under section 5(b)(4) of Act 48. In addition, the Board may wish to take other disciplinary or corrective actions that are not possible under the citation process when an individual practices on a revoked or suspended license. An Act 48 civil penalty schedule is only proper for a violation that the Board would typically address through a monetary civil penalty alone. However, the Commissioner added cross-references to § 20.31(b) and (i) (relating to expiration, renewal and reactivation of license) as additional support for this civil penalty because these regulations expressly prohibit practice when a license has not been renewed and authorize disciplinary action for an individual who practices massage therapy on an inactive or expired license. In addition, upon review the Commissioner realized that the schedule of civil penalties for this violation omitted certain time periods. As proposed, the penalty for practicing on a lapsed license from 0—12 months would be $250 and for practicing from 13—18 months would be $500. However, practice for a period between 12 and 13 months was inadvertently omitted from the schedule. Likewise, there is no place in the schedule for violations of between 18 and 19 months. Therefore, the Commissioner revised the schedule to clearly incorporate all possible time periods.

Description of Amendments to this Final-Form Rulemaking

 The Commissioner revised the schedule to include the appropriate legal citation to the section of the act under which the offense of ''[f]ailure to hold current certification to administer CPR'' would occur. The section was previously cited as ''63 P.S. § 627.6(b)(i)'' and has been corrected to ''§ 627.6(b)(1)(i).''

 The Commissioner also revised the relevant legal citation relating to ''[f]ailure to complete 24 hours of continuing education courses'' to reflect the correct citation to ''63 P.S. §§ 627.6(b)(1)(ii) and 627.4(6)'' and to include the additional cross-reference to § 20.32(a) for further clarity.

 The citation for the offense of ''[h]olding oneself out as a massage therapist or practicing massage therapy while unlicensed'' is revised to provide a more specific citation to section 14(a) of the act, rather than section 14 of the act. The schedule of civil penalties for this violation was also revised to provide for a higher civil penalty of $1,000 for a first offense, rather than $500 as proposed. This revision is based on the public comment and Board discussion regarding the need for the civil penalties to be high enough to result in a deterrent effect on those individuals who find licensure to be an inconvenience.

 The schedule of civil penalties was revised to delete the violation for ''[h]olding oneself out as a licensed massage therapist while license is expired'' because section 14(b) of the act expressly permits an individual whose license is inactive to continue to use various titles or otherwise hold out that one is licensed as a massage therapist. Individuals whose licenses are expired are similarly situated as those whose licenses are maintained in inactive status. Therefore, the Commissioner deleted the proposed civil penalty from the schedule.

 The Commissioner revised the civil penalty for a first offense violation of ''[e]mploying an individual in massage therapy who is not licensed'' from $500 to $1,000. This revision is based on the public comment and Board discussion regarding the need for the civil penalties to be high enough to have a deterrent effect.

 Finally, the Commissioner revised the schedule relating to ''[p]racticing massage therapy on an expired license'' to include practicing massage therapy on an inactive license and added the appropriate citation to § 20.31(i). As proposed, there was not a specific statement that would have allowed for a citation for practice on an inactive license. Inasmuch as practicing on an inactive license is akin to practicing on an expired license, the final-form rulemaking has been revised to cover both situations. Otherwise, practicing on an expired license would result in a citation, while practicing on an inactive license would result in more costly formal disciplinary proceedings. As previously noted, the Commissioner declines to include practicing on a suspended or revoked license in this schedule because those offenses are more appropriately resolved by the Board through formal disciplinary proceedings. In addition, the schedule related to this offense was revised to close inadvertent loopholes created by omitting time frames between 12 and 13 months and between 18 and 19 months from the schedule.

Fiscal Impact and Paperwork Requirements

 This final-form rulemaking does not have adverse fiscal impact on the Commonwealth or its political subdivisions, and will reduce the paperwork requirements for the Commonwealth and the regulated community by eliminating the need for orders to show cause, answers, consent agreements and adjudications/orders for those violations subject to the Act 48 citation process. The only fiscal impact of would be borne by persons who violate the act or regulations of the Board and are subject to the civil penalties imposed by the new schedule.

Sunset Date

 The Board, the Bureau and the Commissioner continually monitor the effectiveness of regulations affecting their operations. As a result, a sunset date has not been assigned.

Regulatory Review

 Under section 5(a) of the Regulatory Review Act (71 P.S. § 745.5(a)), on August 5, 2014, the Commissioner submitted a copy of the notice of proposed rulemaking, published at 44 Pa.B. 5487, 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, the Commissioner shall submit to IRRC, the HPLC and the SCP/PLC copies of comments received during the public comment period, as well as other documents when requested. In preparing the final-form rulemaking, the Commissioner considered all comments from IRRC and the public.

 Under section 5.1(j.2) of the Regulatory Review Act (71 P.S. § 745.5a(j.2)), on October 19, 2016, 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 October 20, 2016, and approved the final-form rulemaking.

Contact Person

 Further information may be obtained by contacting Carol Niner, Board Administrator, State Board of Massage Therapy, P.O. Box 2649, Harrisburg, PA 17105-2649, RA-MASSAGETHERAPY@PA.GOV.

Findings

 The Commissioner finds that:

 (1) Public notice of proposed rulemaking was given under sections 201 and 202 of the act of July 31, 1968 (P.L. 769, No. 240) (45 P.S. §§ 1201 and 1202) and the regulations promulgated thereunder, 1 Pa. Code §§ 7.1 and 7.2.

 (2) A public comment period was provided as required by law and only one public comment was received.

 (3) The amendments to this final-form rulemaking do not enlarge the purpose of the proposed rulemaking published at 44 Pa.B. 5487.

 (4) This final-form rulemaking is necessary and appropriate for administering and enforcing the authorizing act identified in this preamble.

Order

 The Commissioner, acting under the authority of Act 48, orders that:

 (a) The regulations of the Commissioner, 49 Pa. Code Chapter 43b, are amended by adding § 43b.23a and deleting § 43b.23 to read as set forth in Annex A.

 (b) The Commissioner shall submit this order and Annex A to the Office of General Counsel and the Office of Attorney General as required by law.

 (c) The Commissioner shall submit this order and Annex A to IRRC, the HPLC and the SCP/PLC as required by law.

 (d) The Commissioner shall certify this order and Annex A and deposit them with the Legislative Reference Bureau as required by law.

 (e) This order shall take effect on publication in the Pennsylvania Bulletin.

IAN J. HARLOW, 
Commissioner

 (Editor's Note: See 46 Pa.B. 7051 (November 5, 2016) for IRRC's approval order.)

 Fiscal Note: Fiscal Note 16A-723 remains valid for the final adoption of the subject regulations.

Annex A

TITLE 49. PROFESSIONAL AND VOCATIONAL STANDARDS

PART I. DEPARTMENT OF STATE

Subpart A. PROFESSIONAL AND OCCUPATIONAL AFFAIRS

CHAPTER 43b. COMMISSIONER OF PROFESSIONAL AND OCCUPATIONAL AFFAIRS

SCHEDULE OF CIVIL PENALTIES, GUIDELINES FOR IMPOSITION OF CIVIL PENALTIES AND PROCEDURES FOR APPEAL

§ 43b.23. (Reserved).

§ 43b.23a. Schedule of civil penalties—massage therapists.

STATE BOARD OF MASSAGE THERAPY

Violation under 63 P.S.	Violation under 49 Pa. Code	Title/Description	Civil Penalty
	Section 20.42(a)(14)	Failure to display current license or wallet card.	1st offense—$250 2nd and subsequent offenses—$500
	Section 20.42(a)(15)	Failure to include massage therapy license number in advertisements.	1st offense—$250 2nd and subsequent offenses—$500
	Section 20.42(a)(16)	Failure to display name and title.	1st offense—$250 2nd and subsequent offenses—$500
Section 627.6(b)(1)(i)		Failure to hold current certification to administer CPR.	1st offense—$250 2nd offense—$500 Subsequent offense—formal action
Sections 627.6(b)(1)(ii) and 627.4(6)	Section 20.32(a)	Failure to complete 24 hours of continuing education courses approved by the Board during the 24 months preceding license renewal.	1st offense—$100 per credit hour  up to 10 credit hours More than 10 credit hours—formal  action 2nd and subsequent offenses—  formal action
Section 627.14(a)		Holding oneself out as a massage therapist or practicing massage therapy while unlicensed.	1st offense—$1,000 2nd and subsequent offenses—  formal action
Section 627.14(c)		Employing an individual in massage therapy who is not licensed.	1st offense—$1,000 2nd and subsequent offenses—  formal action
Section 627.14(d)		A business utilizing the words massage, massage therapist, massage practitioner, masseur, masseuse, myotherapist or any derivative of these terms or abbreviations, unless the services of the business are provided by licensees.	1st offense—$500 2nd and subsequent  offenses—formal action
Section 627.14(e)	Section 20.31(b) and (i)	Practicing massage therapy on an expired or inactive license.	1st offense—12 months or less—  $250 More than 12 months but no more  than 18 months—$500 More than 18 months but no more  than 24 months—$1,000 More than 24 months—formal  action 2nd offense—12 months or less—  $500 More than 12 months but no more  than 18 months—$1,000 More than 18 months—formal  action Subsequent offenses—formal action

[Pa.B. Doc. No. 16-1988. Filed for public inspection November 18, 2016, 9:00 a.m.]

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