PROPOSED RULEMAKING
STATE BOARD OF COSMETOLOGY
[49 PA. CODE CH. 7]
Practice of Massage Therapy in Cosmetology or Esthetician Salons
[53 Pa.B. 7894]
[Saturday, December 16, 2023]The State Board of Cosmetology (Board) proposes to add § 7.150 (relating to practice of massage therapy in cosmetology or esthetician salons) to read as set forth in Annex A.
Effective Date
This proposed rulemaking will be effective upon publication of final-form rulemaking in the Pennsylvania Bulletin.
Statutory Authority
The act of September 24, 2014 (P.L. 2476, No. 136) amended the act of May 3, 1933 (P.L. 242, No. 86) referred to as the Cosmetology Law (act) (63 P.S. §§ 507—527), by adding section 9.3 to the act (63 P.S. § 515.3) allowing for the practice of massage therapy within the licensed square footage of a cosmetology or esthetician salon. Section 9.3(d) of the act requires the Board and the State Board of Massage Therapy to jointly promulgate final regulations to carry out the provisions of section 9.3.
Background and Purpose
Section 9.3(a) of the act permits an individual licensed under the Massage Therapy Law (63 P.S. §§ 627.1—627.50), to practice massage therapy within the approved premises of a licensed cosmetology salon or a licensed esthetician salon if: (1) the massage therapy licensee is the owner of or employed by the salon and is not an independent contractor; (2) the massage therapist practices in accordance with the act and the Massage Therapy Law; and (3) the salon owner provides an appropriate level of privacy for clients. Section 9.3(a)(3)(i) and (ii) of the act further provides that no physical barrier is required when the massage therapist is performing services that a cosmetologist or esthetician could perform; however, should the services exceed those within the scope of cosmetology or esthetics, a separate room with permanent walls and doors must be utilized. Section 9.3(a)(3)(iii) of the act further provides that an esthetician may provide services in the separate room that is designated for massage therapy services, so long as the cosmetologist or esthetician and massage therapist are not providing services concurrently.
Under section 9.3(b) of the act, a licensee is subject to inspection by the Board and the State Board of Massage Therapy. A licensee who violates the act or the Massage Therapy Law shall be subject to discipline by the licensee's applicable licensing board. Section 9.3 of the act immediately permitted the practice of massage therapy within the licensed square footage of a cosmetology or esthetician salon. For the most part, the amendments to the act were self-executing. The purpose of the Board's joint regulations with the State Board of Massage Therapy is to clarify standards for the practice of massage therapy in cosmetology or esthetician salons, but it was not immediately clear what provisions required clarification and amendments to the regulations. The Board and the State Board of Massage Therapy worked together in determining and drafting the joint regulations and received input from regulated communities. The Board and the State Board of Massage Therapy agreed to promulgate regulations to address appropriate levels of privacy while practicing massage therapy and minimum size requirements for the separate massage therapy room.
Prior to the enactment of section 9.3 of the act, a patron wishing to receive services from a massage therapist and an esthetician would have to move from one room (a room considered not to be within the licensed square footage of the salon) to another room (a room considered to be within the licensed square footage of the salon) for each of the requested services. This process was found to be averse to the relaxing environment facilities were attempting to provide for their clients. The purpose of section 9.3 of the act is to allow for the practice of massage therapy within the licensed square footage of a cosmetology or esthetician salon. With the enactment of section 9.3(a)(3)(iii) of the act, a patron can receive massage therapy and esthetic services all within one room. This proposed rulemaking sets forth the requirements for practicing massage therapy in a cosmetology or esthetician salon. The State Board of Massage Therapy is similarly updating its regulations to clarify the standards for massage therapy in its salons and to ensure consistency between the standards of the Board and the State Board of Massage Therapy.
Description of the Proposed Amendments
The Board proposes to add § 7.150 to set forth the standards for practicing massage therapy within a cosmetology or esthetician salon under section 9.3 of the act. Subsection (a) would set forth the conditions that must be met to practice massage therapy within a cosmetology or esthetician salon, as required by section 9.3(a) of the act. Subsection (a)(1) would provide that the massage therapy licensee must be the owner of the salon or employed by the salon and is not an independent contractor as required by section 9.3(a)(1) of the act. Subsection (a)(2) would provide that the massage therapist would be required to practice in accordance with this section, Chapter 20 (relating to State Board of Massage Therapy), the act and the Massage Therapy Law. Subsection (a)(2)(i) provides that the salon owner may only employ a massage therapist who is currently licensed by the State Board of Massage Therapy. The subsection further provides that the salon owner is responsible to ensure each massage therapist employed by the salon complies with this section, Chapter 20, the act and the Massage Therapy Law. Subsection (a)(2)(ii) provides that the message therapist who is the owner of the salon shall comply with regulations applicable to salon owners as set forth in the Board's regulations in §§ 7.50—7.66 (relating to licensure and management of salons).
Subsection (a)(3) requires that a salon owner provide an appropriate level of privacy for clients. Subsection (a)(3)(i)(A) and (B) clarifies that when a massage therapist is practicing in a separate massage therapy room of the salon, or in the areas of the salon used for cosmetology or esthetics, the massage therapist is practicing in the licensed square footage of the salon. Furthermore, subsection (a)(3)(i)(A) and (B) clarifies what services require a separate massage therapy room by specifically listing the massage services that do not require the use of physical barriers. The Board's proposed regulation reflects section 9.3(a)(3)(i) of the act which provides that no physical barriers separating the areas used for massage therapy from the areas used for cosmetology or esthetics, as defined in section 1 of the act (63 P.S. § 507), shall be required when a massage therapist performs massage services that a cosmetologist or esthetician is authorized to perform. Subsection (a)(3)(ii) clarifies that when a massage therapist is practicing in a separate massage therapy room of the salon, the massage therapist is practicing in the licensed square footage of the salon. Furthermore, subsection (a)(3)(ii) requires that a salon owner provide separate massage therapy rooms with permanent walls and doors to ensure privacy for clients receiving massage services from a massage therapist when the services are beyond the practice of cosmetology or esthetics, as required by section 9.3(a)(3)(i) of the act.
Subsection (a)(3)(ii)(A)—(C) sets forth standards for separate massage therapy rooms. Subsection (a)(3)(ii)(A) requires that massage therapy rooms be a minimum of 120 square feet in size, which is a generally accepted industry standard based on the size of a standard massage table (73 inches × 30 inches) and allows room for a massage therapist to safely maneuver around it (approximately 3 to 4 feet on each side of the table). The Board feels this requirement is necessary because § 7.76(a) (relating to floor space) requires an ''additional area of at least 60 square feet. . .for each additional licensee in the salon.'' Accordingly, it is likely that salon owners unfamiliar with the practice of massage therapy will expect massage therapists to perform massage therapy in rooms designed for the practice of cosmetology or esthetician services (that is, rooms with little more than 60 square feet in size). A 60-square-foot room does not provide a massage therapist sufficient room to safely maneuver around a standard-sized massage table and keep the necessary supplies at hand. Additionally, massage therapy clients are often asked to position their arms at a 90-degree angle to the body, and the massage therapist must safely maneuver around the client's outstretched arms. Moreover, clients are typically expected to use the massage therapy room to disrobe and transition to the massage therapy table. Accordingly, massage therapy rooms frequently include a chair, as well as clothing storage such as clothing hooks or a shelving unit. It would be a safety risk to expect a massage therapist to safely perform massage therapy multiple times a day in any room smaller than 120 square feet. Accordingly, after discussing this issue at public board meetings, and reaching an agreement with the State Board of Massage Therapy, the Board is of the opinion that a minimum room size of 120 square feet is appropriate.
Subsection (a)(3)(ii)(B) discusses the storage of linens or other supplies used by a massage therapist in a salon. Sections 7.71a—7.71c (relating to equipment and supplies for esthetician salon; equipment and supplies for a nail technology salon; and equipment and supplies for a natural hair braiding salon) set minimum standards for equipment and supplies, detailing what must be available to licensees, and where linens must be stored. Being that massage therapists working in salons will be required to adhere to both State Board of Massage Therapy regulations and the Board's regulations, the Board believes that it must clarify where massage therapists may store linens and other supplies. Accordingly, subsection (a)(3)(ii)(B) allows the massage therapist to store linens or other supplies used for massage therapy in the massage therapy room or in the salon in a space designated by the salon owner.
Subsection (a)(3)(ii)(C) states esthetician services may be provided in the massage therapy room, so long as esthetician services were not provided concurrent to the massage therapy services, as required by section 9.3(a)(3)(iii) of the act.
Subsection (b) requires a massage therapist practicing massage therapy within the approved premises of a salon to practice in accordance with the act and correlating regulations, the State Board of Massage Therapy's regulations and the Massage Therapy Law, as required by section 9.3(a)(2) of the act.
Subsection (c) states that a massage therapist practicing in accordance with section 9.3 of the act would be subject to inspection by both the Board and the State Board of Massage Therapy, as required by section 9.3(b) of the act.
Subsection (d) states that a massage therapist practicing in a salon, who violates the act or the Massage Therapy Law, is subject to discipline by the State Board of Massage Therapy, as required by section 9.3(c) of the act.
Fiscal Impact and Paperwork Requirements
There will not be a negative fiscal impact on licensees or the Board. Section 9.3 of the act was added September 24, 2014, and permitted the practice of massage therapy within the licensed square footage of a cosmetology or esthetician salon as of November 24, 2014. The Board does not track how many massage therapists work in salons. However, it is unlikely that any significant number of massage therapists have been practicing in rooms smaller than 120 square feet because the practice of massage therapy in any room smaller than 120 square feet would be difficult and potentially dangerous. However, the small number of massage therapists who may be currently working in rooms smaller than 120 square feet will have to find a way to comply with the proposed regulation. For the reasons explained in this preamble, it is in the public interest to require that massage therapy be performed in a room large enough to accommodate all that is required.
While section 9.3(b) of the act indicates that massage therapists practicing in salons are subject to inspection by the Board and the State Board of Massage Therapy, the Board currently conducts these inspections, while the State Board of Massage Therapy does not. Accordingly, the Board's fees are structured to allow for these inspections.
Sunset Date
The Board continuously monitors the effectiveness of its regulations on a fiscal year and biennial basis. Therefore, no sunset date has been assigned.
Regulatory Review
Under Section 5(a) of the Regulatory Review Act (71 P.S. § 745.5(a)), on December 4, 2023, 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 to the chairperson of the Consumer Protection and Professional Licensure Committee of the Senate and the chairperson of the Professional Licensure Committee of the House of Representatives. 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 shall specify the regulatory review criteria that have not been met. The Regulatory Review Act specifies detailed procedures for review, prior to final publication of the rulemaking, by the Commissioner, the General Assembly and the Governor.
Public Comment
Interested persons are invited to submit written comments, suggestions or objections regarding this proposed rulemaking to the Regulatory Counsel, Department of State, P.O. Box 69523, Harrisburg, PA 17106-9523 or RA-STRegulatoryCounsel@pa.gov, within 30 days following publication of this proposed rulemaking in the Pennsylvania Bulletin. Comments should be identified as pertaining to rulemaking 16A-4518 (massage therapy in cosmetology or esthetician salons).
TAMMY O'NEIL,
ChairpersonFiscal Note: 16A-4518. No fiscal impact; recommends adoption.
Annex A
TITLE 49. PROFESSIONAL AND VOCATIONAL STANDARDS
PART I. DEPARTMENT OF STATE
Subpart A. PROFESSIONAL AND OCCUPATIONAL AFFAIRS
CHAPTER 7. STATE BOARD OF COSMETOLOGY
PRACTICE OF MASSAGE THERAPY IN COSMETOLOGY OR ESTHETICIAN SALONS (Editor's Note: Section 7.150 is proposed to be added and is printed in regular type to enhance readability.)
§ 7.150. Practice of massage therapy in cosmetology or esthetician salons.
(a) A massage therapist licensed under the act of October 9, 2008 (P.L. 1438, No. 118) (63 P.S. §§ 627.1—627.50), referred to as the Massage Therapy Law, is permitted to practice massage therapy within the approved premises of a licensed cosmetology salon or a licensed esthetician salon if all of the following conditions are met:
(1) The massage therapy licensee is the owner of or employed by the salon and is not an independent contractor.
(2) The massage therapist practices in accordance with this section, Chapter 20 (relating to State Board of Massage Therapy), the act and the Massage Therapy Law. The following apply:
(i) The salon owner may only employ a massage therapist who is currently licensed by the State Board of Massage Therapy. The salon owner is responsible to ensure each massage therapist employed by the salon complies with this section, Chapter 20, the act and the Massage Therapy Law.
(ii) A massage therapist who is the owner of the salon shall comply with all of the regulations applicable to salon owners set forth in §§ 7.50—7.66 (relating to licensure and management of salons).
(3) The salon owner provides an appropriate level of privacy for clients in accordance with all of the following:
(i) Massage therapy services within the scope of practice of the Cosmetology Law. When a massage therapist is practicing in a separate massage therapy room of the salon or in the areas of the salon used for cosmetology or esthetics, the massage therapist is practicing in the licensed square footage of the salon. Physical barriers separating the areas used for massage therapy services from the areas used for cosmetology or esthetics are not required when a massage therapist provides massage therapy services that are within the scope of practice of cosmetology as defined in § 7.1 (relating to definitions) as follows:
(A) Massage therapy services of the scalp, face, arms or hands, or the upper part of the body.
(B) Massage therapy services of the feet or the lower legs of an individual up to the individual's knee.
(ii) Massage therapy services beyond the scope of practice of the Cosmetology Law. When a massage therapist is practicing in a separate massage therapy room of the salon, the massage therapist is practicing in the licensed square footage of the salon. A salon owner shall provide separate massage therapy rooms with permanent walls and doors to ensure privacy for clients receiving massage therapy services from a massage therapist when the massage therapy services are beyond the scope of practice of cosmetology or esthetics as provided in § 7.1. The following apply:
(A) The size of the separate massage therapy room must be a minimum of 120 square feet.
(B) The massage therapist may store linens or other supplies in the separate room provided or in the salon in a space designated by the salon owner.
(C) Esthetician services may be provided to a client in the same room where the client receives massage therapy, provided these services are not performed concurrently.
(b) A massage therapist providing massage therapy services within the approved premises of a salon shall practice in accordance with the act, this chapter and the Massage Therapy Law.
(c) A massage therapist providing massage therapy services within the approved premises of a salon is subject to inspection by the State Board of Massage Therapy and the board.
(d) A massage therapist providing massage therapy services within the approved premises of a salon who violates this section, the act or the Massage Therapy Law is subject to discipline by the State Board of Massage Therapy.
[Pa.B. Doc. No. 23-1753. Filed for public inspection December 15, 2023, 9:00 a.m.]
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