PROPOSED RULEMAKING
STATE BOARD OF
MASSAGE THERAPY
[ 49 PA. CODE CH. 20 ]
Fees
[48 Pa.B. 3736]
[Saturday, June 23, 2018]The State Board of Massage Therapy (Board) proposes to amend § 20.3 (relating to fees) to read as set forth in Annex A.
Effective Date
This proposed rulemaking will be effective upon final-form publication in the Pennsylvania Bulletin. The increased application fees will be implemented immediately; the increased biennial renewal fees will be implemented with the January 31, 2019, biennial renewal.
Statutory Authority
Section 11(a) of the Massage Therapy Law (act) (63 P.S. § 627.11(a)) requires the Board to increase fees by regulation to meet or exceed projected expenditures if the revenues raised by fees, fines and civil penalties imposed under the act are not sufficient to meet expenditures over a 2-year period. Likewise, section 11(b) of the act requires the Board to increase fees by regulation so that adequate revenues raised will meet the enforcement efforts required under the act.
Background and Need for Amendments
Under section 11(a) and (b) of the act, the Board is required by law to support its operations from the revenue it generates from fees, fines and civil penalties. In addition, the act provides that the Board shall increase fees if the revenue raised by fees, fines and civil penalties is not sufficient to meet expenditures over a 2-year period. The Board raises the majority of its revenue through biennial renewal fees. A small percentage of its revenue comes from application fees, fines and civil penalties.
Under section 49 of the act (63 P.S. § 627.49), initial operating funds were transferred from the Professional Licensure Augmentation Account (PLAA) to the Board to be repaid to the PLAA within 3 years of the beginning of the issuance of licenses. The current fee schedule in § 20.3 was established with the Board's initial rulemaking in 2011 based upon an estimate of the costs of administering the functions of the Board at that time. See 41 Pa.B. 16 (January 1, 2011). However, since the Board began issuing licenses in 2011, it has not produced enough revenue to cover its current operating expenses or repay the moneys advanced from the PLAA. In fact, the deficit balance in the Board's account as of the beginning of Fiscal Year (FY) 2017-2018 was $1,058,603.88.
At the June 3, 2014, Board meeting, representatives from the Department of State's Bureau of Finance and Operations (BFO) presented a summary of the Board's revenue and expenses for FY 2008-2009 through FY 2013-2014 and the projected revenue and expenses through FY 2025-2026, and discussed various options for the Board's consideration to balance its budget and to repay the PLAA. The BFO returned on October 17, 2014, with updated projections that it discussed with the Board. During FY 2008-2009 and FY 2009-2010, the Board incurred expenses of $89,628.97, with no revenue coming in. In FY 2010-2011, the Board began issuing licenses and received $203,105 in revenue. However, expenditures for that same time period totaled $211,749.61, adding to the deficit. Thus, at the beginning of FY 2011-2012, the Board's deficit balance was $98,273.58. In FY 2011-2012, the Board received revenue of $293,876.80, while expenditures were $413,876.64, adding another $119,999.84 to the deficit—totaling $218,273.42. FY 2012-2013 was the Board's first renewal year, that is, the first time the Board would collect the $75 biennial renewal fee from each of its 7,313 licensees (at that time). In that year, the Board received $607,889.13 in total revenues which covered its expenditures for the year of $596,442.21, but only reduced the deficit balance to $206,826.50. The next year, FY 2013-2014, was a nonrenewal year with revenues of only $129,884.26. Expenditures during FY 2013-2014 were consistent with the year before at $601,282.08, resulting in a total deficit balance of $678,224.32 at the beginning of FY 2014-2015.
Therefore, the Board determined that it is necessary to raise fees to meet or exceed projected expenditures in compliance with section 11(a) and (b) of the act. The Board assigned the matter to its Regulations Committee, which then presented the proposed fee structure to the Board. A draft of the proposal was presented to the Board at its meeting on February 10, 2015, at which time the Board voted to solicit input from interested parties and stakeholders in accordance with Executive Order 1996-1 for the Board's consideration at its next meeting. At its meeting on April 7, 2015, the Board considered the comments submitted by the Pennsylvania Chapter of the American Massage Therapy Association (AMTA PA) regarding the proposed increase to the biennial renewal fee and those submitted by the Executive Director of the Pittsburgh School of Massage Therapy regarding the proposed fees for continuing education course approval. In addition, at the April 7, 2015, meeting the Board invited public comment and permitted members of the audience to address the Board regarding the proposal. At that time, Kim Kane-Santos, President of AMTA PA, reviewed the comment she submitted on behalf of AMTA PA. At the conclusion of the presentation, the Board voted to proceed to promulgate a proposed rulemaking.
At that time, it was anticipated that the increased fees would be effective in time to be imposed for the biennial renewal period beginning January 31, 2017. However, due to circumstances beyond the Board's control, the Board was unable to promulgate the rulemaking in time to impose the fees in 2017. In the meantime, the accumulated deficit has continued to grow. In FY 2014-2015, the Board received $679,772.08 in total revenues which covered its expenditures for the year of $664,644.20, resulting in a total deficit balance of $663,096.44, at the beginning of FY 2015-2016. In FY 2015-2016, a nonrenewal year, the Board's revenues were $196,667.41 and the expenditures were $635,539.01, which resulted in an accumulated deficit of $1,101,968.04. In FY 2016-2017, a renewal year, the Board's revenues were at $701,356.77 and the expenditures were $657,992.61, which resulted in a slightly lower accumulated deficit of $1,058,603.88 at the beginning of FY 2017-2018. At its meeting on February 23, 2017, the BFO returned to the Board to make its annual budget presentation and suggested the Board consider increasing the fees further in light of the mounting deficits. The Board considered the BFO's proposal at its meeting on June 13, 2017, and ultimately determined that it would proceed with this proposed rulemaking as drafted, although it would take longer to recoup the accumulated deficit.
There are currently 8,754 actively licensed massage therapists who pay a biennial renewal fee of $75. Therefore, under the existing fee structure, the Board will produce approximately $656,550 in renewal revenues covering the biennial renewal period which falls in FY 2017-18 and FY 2018-19. Based on an estimated 2,000 application fees at $65 each, the Board is estimated to receive $130,000 in application fees during the biennial period. It is estimated that the Board will receive an additional $25,000 in other nonrenewal revenue, for a total of $811,550 in projected biennial revenue for FY 2017-18 and FY 2018-19. However, projected expenditures for the same period are estimated at $1,269,732.39, resulting in a biennial operating deficit of $458,182.39 which when added to the existing deficit will result in a projected deficit of approximately $1,516,786.27 by the end of FY 2018-2019. Without a substantial increase in the biennial renewal fee, the BFO projects continuing deficits for the foreseeable future. In addition, the BFO anticipates that there will be an increase in costs to the Board in the implementation of the act of September 24, 2014 (P.L. 2476, No. 136) (Act 136) which permits the practice of massage therapy in cosmetology and esthetician salons and directs the Board and the State Board of Cosmetology to jointly promulgate regulations to carry out Act 136. It is anticipated that some of the costs associated with inspection of cosmetology and esthetician salons that include massage therapy services will be allocated to the Board.
Therefore, this proposed rulemaking would amend § 20.3 to increase: the application fee for initial licensure from $65 to $100; the application fee for approval of a continuing education program from $65 to $100; and the biennial renewal fee from $75 to $200. The increased application fees will be effective immediately upon publication of the final-form rulemaking. The increased biennial renewal fee will go into effect for the January 31, 2019, biennial renewal. The new fee structure is projected to produce biennial revenues of approximately $2 million, which will allow the Board to avoid adding to the mounting deficits, repay the PLAA and meet its subsequent estimated expenditures for a number of years to come.
Description of Proposed Amendments
This proposed rulemaking would amend § 20.3 to increase: the application fee for initial licensure from $65 to $100; the fee for approval of a continuing education program from $65 to $100; and the biennial renewal fee from $75 to $200.
The Board also proposes to delete § 20.3(d) pertaining to certain examination fees because on October 3, 2014, the Federation of State Massage Therapy Boards (FSMTB) and the National Certification Board for Therapeutic Massage and Bodywork (NCBTMB) reached an agreement that the NCBTMB will no longer provide examinations for licensure purposes and will focus exclusively on delivering certification programs. The licensure examinations previously administered by the NCBTMB included the National Examination for State Licensure, the National Certification Examination for Therapeutic Massage and the National Certification Examination for Therapeutic Massage and Bodywork. Effective November 1, 2014, the NCBTMB ceased accepting new licensure exam applications. Effective February 1, 2015, the NCBTMB stopped offering licensure exams. Effective February 1, 2015, and thereafter, the FSMTB administers the Massage and Bodywork Licensure Exam that is provided for in § 20.3(c).
Fiscal Impact
This proposed rulemaking will increase the biennial renewal fees, the initial application fees and the fee for approval of continuing education programs. There are currently approximately 8,754 licensees that will be required to pay $125 more every 2 years to renew their licenses when they expire on January 31, 2019, and thereafter. There are currently approximately 1,000 initial applicants annually who will have to pay $35 more to obtain an initial license. The sponsors of continuing education programs will have to pay $35 more for the approval of their continuing education programs. This proposed rulemaking should not have other fiscal impact on the private sector, the general public or political subdivisions of this Commonwealth.
Paperwork Requirements
The proposed rulemaking will require the Board to alter some of its forms to reflect the new fees. This proposed rulemaking will not create additional paperwork for the regulated community or for the private sector.
Sunset Date
The act requires the Board to monitor its revenue and costs on a fiscal year and biennial basis. Therefore, 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 June 13, 2018, the Board submitted a copy of this proposed rulemaking and a copy of a Regulatory Analysis Form to the Independent Regulatory Review Commission (IRRC) and the Chairpersons of the House Professional Licensure Committee (HPLC) and the Senate Consumer Protection and Professional Licensure Committee (SCP/PLC). A copy of this material is available to the public upon request.
Under section 5(g) of the Regulatory Review Act, IRRC may convey comments, recommendations or objections to the proposed rulemaking within 30 days of the close of the public comment period. The comments, recommendations or objections must specify the regulatory review criteria in section 5.2 of the Regulatory Review Act (71 P.S. § 745.5b) which have not been met. The Regulatory Review Act specifies detailed procedures for review prior to final publication of the rulemaking by the Board, the General Assembly and the Governor.
Public Comment
Interested persons are invited to submit written comments, suggestions or objections regarding this proposed rulemaking to Jacqueline A. Wolfgang, Assistant Counsel, Department of State, P.O. Box 69523, Harrisburg, PA 17106-9523, RA-STRegulatoryCounsel@pa.gov within 30 days following publication of this proposed rulemaking in the Pennsylvania Bulletin. Reference Regulation No. 16A-724 (fees) on comments.
BECKY D. LESIK, LMT,
ChairpersonFiscal Note: 16A-724. No fiscal impact; the fee increases described in this proposed rulemaking are necessary to meet the costs assumed by the Board; (8) recommends adoption.
Annex A
TITLE 49. PROFESSIONAL AND VOCATIONAL STANDARDS
PART I. DEPARTMENT OF STATE
Subpart A. PROFESSIONAL AND OCCUPATIONAL AFFAIRS
CHAPTER 20. STATE BOARD OF MASSAGE THERAPY
GENERAL PROVISIONS § 20.3. Fees.
(a) The following fees are charged for services provided by the Board:
Application for initial licensure
[$65] $100 Application for temporary practice permit
$65 Verification of licensure or letter of good standing
$15 Certification of licensure history
$25 Reactivation of license
$65 Restoration after suspension or revocation
$65 Approval of continuing education program
[$65] $100 (b) The following fees are charged to sustain the operations of the Board:
Biennial renewal of license
[$75] $200 (c) In addition to the application fee prescribed in subsection (a), which is payable directly to the Board, a candidate for the MBLEx shall be responsible for any fees charged by the FSMTB for taking the examination.
[(d) In addition to the application fee prescribed in subsection (a), which is payable directly to the Board, a candidate for the NESL, the NCETM or the NCETMB shall be responsible for any fees charged by the NCBTMB for taking the examinations.]
[Pa.B. Doc. No. 18-962. Filed for public inspection June 22, 2018, 9:00 a.m.]
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