View Amendment Current Amendment: 214C002.NBD.AC13.docx to Bill 214     The Committee on Labor, Commerce and Industry proposed the following amendment (NBD\214C002.NBD.AC13):
    Amend the bill, as and if amended, by striking all after the enacting words and inserting:

/     SECTION     1.     Section 40-30-30 of the 1976 Code is amended to read:

    "Section 40-30-30.     As used in this chapter:
    (1)     'Advisory Panel' means the Advisory Panel for Massage/Bodywork under the Department of Labor, Licensing and Regulation.
    (2)     'Approved massage/bodywork school' means a facility which that meets minimum standards for training and curriculum as determined by regulation of the department.
    (3)(2)     'Department' means the Department of Labor, Licensing and Regulation.
    (4)(3)     'Director' means the Director of the Department of Labor, Licensing and Regulation.
    (5)     'Disciplinary panel' means the Disciplinary Panel for Massage/Bodywork under the Department of Labor, Licensing and Regulation.
    (6)(4)     'Hydrotherapy' means the use of water, vapor, or ice for treatment of superficial tissues.
    (7)(5)     'Licensure' means the procedure by which a person an individual applies to the department and is granted approval to practice massage/bodywork.
    (8)(6)     'Massage/bodywork therapy' means the application of a system of structured touch of the superficial tissues of the human body with the hand, foot, arm, or elbow whether or not the structured touch is aided by hydrotherapy, thermal therapy, a massage device, human hands, or the application to the human body of an herbal preparation.
    (9)(7)     'Massage/bodywork therapist' means a person an individual licensed as required by this chapter, who administers massage/bodywork therapy for compensation.
    (10)(8)     'Massage device' means a mechanical device which that mimics or enhances the actions possible by the hands by means of vibration.
    (9)     'Panel' means the Panel for Massage/Bodywork under the Department of Labor, Licensing and Regulation.
    (11)(10)     'Thermal therapy' means the use of ice or a heat lamp or moist heat on superficial tissues."

SECTION     2.     Sections 40-30-40, 40-30-50 and 40-30-60 of the 1976 Code are amended to read:

    "Section 40-30-40.     (A)     There is created the Advisory Panel for Massage/Bodywork under the Department of Labor, Licensing and Regulation. The advisory panel consists of five seven members appointed by the Governor. The Six members of the advisory panel must be licensed massage/bodywork therapists in good standing and must have been engaged in the practice of massage/bodywork for not fewer than three consecutive years before appointment to the advisory panel and must be appointed by the Governor. Each advisory One member must represent the public at large and must not have a financial interest, direct or indirect, in the profession or practice of massage/bodywork therapy. A panel member must be a high school graduate or shall have received a graduate equivalency diploma. Each advisory panel member and must be a citizen of the United States and a resident of this State for not fewer than five years. (B) Nominations for appointment to the advisory panel may be submitted to the Governor from any individual, group, or association.
    (C)(B)     Members serve a term of four years and until their successors are appointed and qualify. A vacancy on the advisory panel must be filled in the manner of the original appointment for the remainder of the unexpired term.
    (C)     Members of the panel must be compensated for their services at the usual rate for mileage, subsistence, and per diem as provided by law for members of state boards, committees, and commissions and must be reimbursed for actual and necessary expenses incurred in connection with and as a result of their service on the panel. Compensation and reimbursements paid to panel members pursuant to this subsection must be paid as an expense of the panel in the administration of this chapter.
    (D)     The Governor may remove a member of the advisory panel in accordance with Section 1-3-240.

    Section 40-30-50.     (A)     The duties of the advisory Panel for Massage/Bodywork are to shall:
        (1)     advise and recommend action to the department in the development of regulations, statutory revisions, and such other matters as the department may request in regard to the administration of this chapter;
        (2)     conduct hearings:
            (a)     on alleged violations of this chapter and regulations promulgated pursuant to this chapter;
            (b)     on licensure determination if not appropriate to be determined at the staff level;
        (3)     mediate consumer complaints if appropriate;
        (4)     recommend discipline for individuals licensed pursuant to this chapter in any manner provided for in this chapter.
    (B)     The panel may administer oaths and upon its own motion, or upon request of a party, shall subpoena witnesses, compel their attendance, take evidence, and require the production of matter that is relevant to the investigation including, but not limited to, the existence, description, nature, custody, condition, and location of books, documents, or other tangible items and the identity and location of individuals having knowledge of relevant facts or other matter reasonably calculated to lead to the discovery of material evidence. Upon failure to obey a subpoena or to answer questions propounded by the panel, the panel may apply pursuant to the Administrative Procedures Act to an administrative law judge for an order requiring the individual to appear before the panel and to produce documentary evidence and give other evidence concerning the matter under inquiry.

    Section 40-30-60.     (A)     In accordance with Section 40-73-15, The Director of the Department of Labor, Licensing and Regulation may employ and establish compensation for personnel the director considers necessary and appropriate for the administration of this chapter.
    (B)     The director shall prescribe duties must be prescribed by the director and, which may include, but are not limited to:
        (1)     maintaining and preserving records;
        (2)     receiving and accounting for all monies received by the department panel;
        (3)     issuing necessary notices to licensees;
        (4)     determining the eligibility of applicants for examination and licensure;
        (5)     examining applicants for licensure including, but not limited to:
            (a)     prescribing the subjects, character, and manner of licensing examinations;
            (b)     preparing, administering, and grading the examination or contracting for the preparation, administration, or grading of the examination. Professional testing services may be utilized to formulate and administer any examinations required by the department;
        (6)     license issuing and renew the renewing licenses of qualified applicants;
        (7)     evaluate evaluating and approve approving continuing education course hours and programs;
        (8)     promulgate promulgating regulations to carry out this chapter including, but not limited to, establishing a code of ethics to govern the conduct and practices of persons individuals licensed under pursuant to this chapter. In accordance with Section 40-73-15, the Director of the Department of Labor, Licensing and Regulation may employ and establish compensation for personnel the director considers necessary and appropriate for the administration of this chapter."

SECTION     3.     Section 40-30-90 of the 1976 Code is amended to read:

    "Section 40-30-90.     The department shall prepare and submit to the Governor an annual report on the administration of this chapter in accordance with Section 40-73-20."

SECTION     4.     Section 40-30-110 of the 1976 Code is amended to read:
   
    "Section 40-30-110.     To be licensed by the department as a massage/bodywork therapist a person must an individual:
        (1)     must be at least eighteen years of age and have received a high school diploma or graduate equivalency diploma;
        (2)     shall have completed a five hundred hour course of supervised classroom study at an approved massage/bodywork school having a curriculum that meets the standards as set forth in regulation by the department; and
        (3)     shall have received a passing grade on the National Certification Exam for Therapeutic Massage and Bodywork (NCETMB), National Certification Examination for Therapeutic Massage (NCETM), or any other national examination for massage/bodywork therapy that meets the educational requirements of this chapter and have been certified by the National Commission for Certifying Agencies, or an examination that meets the standards recommended by the advisory panel as set forth in regulation by the department the Massage and Bodywork Licensing Examination (MBLEx), or any other examination provided for in regulation."

SECTION     5.     Section 40-30-200 of the 1976 Code is amended to read:

    "Section 40-30-200.     If the director has reason to believe that a person an individual licensed under pursuant to this chapter has become unfit to practice massage/bodywork therapy or has violated a provision of this chapter or a regulation promulgated under pursuant to this chapter or if a written complaint is filed with the director charging the a licensee with the violation of a provision of this chapter or a regulation, the director shall initiate an investigation in accordance with procedures established by the department in regulation. If after investigation it appears that probable cause exists for a hearing, a time and a place must be set by the disciplinary panel for a hearing to determine whether disciplinary action must be taken against the licensee. Notice must be given and the hearing conducted in accordance with the Administrative Procedures Act."

SECTION     6.     Sections 40-30-220, 40-30-230, 40-30-240, 40-30-250, 40-30-260, and 40-30-270, of the 1976 Code are amended to read:

    "Section 40-30-220.     (A)     When If the disciplinary panel or the department has reason to believe that a person an individual is violating or intends to violate a provision of this chapter or a regulation promulgated under pursuant to this chapter, in addition to all other remedies, it the panel may order the person an individual to immediately cease and desist from engaging in the conduct. If the person individual is practicing massage/bodywork without being licensed under pursuant to this chapter the disciplinary panel or the department also may apply to an administrative law judge for a temporary restraining order prohibiting the unlawful practice. The administrative law judge may issue a temporary restraining order ex parte and the disciplinary panel or the department is not required to:
        (1) post a bond;
        (2) establish the absence of an adequate remedy at law;
        (3) establish that irreparable damage would result from the continued violation.
    No disciplinary A panel member nor, the Director of the Department of Labor, Licensing or Regulation nor, or any other employee of the department may not be held liable for damages resulting from a wrongful temporary restraining order.
    (B)     In accordance with the South Carolina Rules of Civil Procedure, the disciplinary panel or the department also may seek from an administrative law judge other equitable relief to enjoin the violation or intended violation of this chapter or a regulation promulgated under pursuant to this chapter.

    Section 40-30-230.     The following constitute misconduct and are grounds for the department denying initial licensure to or the disciplinary panel taking disciplinary action against a person an individual who:
    (1)     used a false, fraudulent, or forged statement or document or committed a fraudulent, deceitful, or dishonest act in applying for licensure under pursuant to this chapter;
    (2)     has had his or her license to practice massage/bodywork from another state or jurisdiction canceled, revoked, suspended, or otherwise restricted;
    (3)     has violated a provision of this chapter, a regulation promulgated under pursuant to this chapter, or an order of the department or the disciplinary panel;
    (4)     has intentionally or knowingly, directly or indirectly, aided or abetted in the violation or conspiracy to violate this chapter or a regulation promulgated under pursuant to this chapter;
    (5)     has intentionally used a fraudulent statement in a document connected to the practice of massage/bodywork or has made false, deceptive, or misleading statements in the practice of massage/bodywork or in advertising;
    (6)     has obtained fees or assisted in obtaining fees under intentionally fraudulent circumstances;
    (7)     has committed dishonorable, unethical, or unprofessional conduct that is likely to deceive, defraud, or harm the public;
    (8)     lacks the professional or ethical competence to practice massage/bodywork;
    (9)     has been convicted of or has pled guilty to or nolo contendere to a felony or a crime which that directly relates to the practice or ability to practice massage/bodywork;
    (10)     has practiced massage/bodywork while under the influence of alcohol or drugs or uses alcohol or drugs to such a degree as to render him or her unfit to practice massage/bodywork;
    (11)     has sustained a physical or mental disability, as determined by a physician, which that renders further practice by the licensee dangerous to the public.

    Section 40-30-240.     When If investigating grounds for taking disciplinary action based upon an alcohol or drug addiction, as provided for in Section 40-30-230(10), or a physical or mental disability, as provided for in Section 40-30-230(11), the disciplinary panel upon reasonable grounds may:
    (1)     require an applicant or licensee to submit to a mental or physical examination including a drug test by physicians designated by the disciplinary panel. The results of an examination are admissible in a hearing before the disciplinary panel, notwithstanding a claim of privilege under pursuant to a contrary rule of law. A person An individual who accepts the privilege of practicing massage/bodywork in this State or who files an application for a license to practice massage/bodywork in this State is deemed to have consented to submit to a mental or physical examination including a drug test and to have waived all objections to the admissibility of the results in a hearing before the disciplinary panel upon the grounds that the results constitute a privileged communication. If an applicant or licensee fails to submit to an examination when requested by the disciplinary panel under pursuant to this section, unless the failure was due to circumstances beyond the person's individual's control, the disciplinary panel shall enter an order automatically denying or suspending the license pending compliance and further order of the disciplinary panel. An applicant or licensee who is prohibited from practicing under pursuant to this subsection must be afforded at reasonable intervals an opportunity to demonstrate to the disciplinary panel the ability to resume or begin the practice of massage/bodywork with reasonable skill and safety to patients;
    (2) obtain records of an examination required by item (1) specifically relating to the mental or physical condition of an applicant or licensee who is the subject of an investigation authorized by item (1) and these records are admissible in a hearing before the disciplinary panel, notwithstanding any other provision of law. A person An individual who accepts the privilege of practicing massage/bodywork in this State or who files an application to practice massage/bodywork in this State is deemed to have consented to the disciplinary panel obtaining these records and to have waived all objections to the admissibility of these records in a hearing before the disciplinary panel upon the grounds that the records constitute a privileged communication. If a licensee or applicant refuses to sign a written consent for the disciplinary panel to obtain these records when requested by the disciplinary panel under pursuant to this section, unless the failure was due to circumstances beyond the person's individual's control, the disciplinary panel shall enter an order automatically denying or suspending the license pending compliance and further order of the disciplinary panel. An applicant or licensee who is prohibited pursuant to this section from practicing massage/bodywork under this section must be afforded at reasonable intervals an opportunity to demonstrate to the disciplinary panel the ability to resume or begin the practice of massage/bodywork with reasonable skill and safety to patients.

    Section 40-30-250.     (A)     Upon a determination by the disciplinary panel that one or more of the grounds for discipline exists, as provided for in Section 40-30-230, the disciplinary panel may:
        (1)     issue a nondisciplinary letter of caution;
        (2)     issue a private reprimand;
        (3)     issue a public reprimand;
        (3)(4)     impose a fine not to exceed five hundred dollars;
        (4)(5)     place the licensee on probation, restrict the license, or suspend the license for a definite or indefinite time and prescribe conditions to be met during probation, restriction, or suspension, respectively, including, but not limited to, satisfactory completion of additional education of a supervisory period or of continuing education programs as may be specified;
        (5)(6)     permanently revoke the license.
    (B)     A decision by the disciplinary panel to discipline a licensee as authorized under pursuant to this section must be made by a majority vote of the total membership of the disciplinary panel serving at the time the vote is taken.
    (C)     Except for a private reprimand, a final order of the department refusing to issue a license to an applicant or a final order of the disciplinary panel disciplining a licensee under pursuant to this section, except for a private reprimand, is public information.

    Section 40-30-260.     A licensee who is under investigation for misconduct, as defined in Section 40-30-230, for which the disciplinary panel may take disciplinary action may voluntarily may surrender his or her license to the department. The voluntary surrender invalidates, invalidating the license at the time of its relinquishment, and no person it is surrendered. An individual whose license is surrendered voluntarily who voluntarily surrenders his or her license may not practice as a massage/bodywork therapist until the disciplinary panel reinstates the individual's license. A person An individual practicing as a massage/bodywork therapist during the period of voluntary license surrender is considered deemed an illegal practitioner and is subject to the penalties provided by in this chapter. The surrender of Surrendering a license may must not be considered as an admission of guilt in a proceeding under held pursuant to this chapter. The surrender However, surrendering a license does not preclude the disciplinary panel from imposing conditions on the acceptance of the proffered surrender and does not preclude the disciplinary panel license or from taking disciplinary action against the licensee.

    Section 40-30-270.     A person An individual aggrieved by an action of the disciplinary panel or the department may appeal the decision to an administrative law judge in accordance with the Administrative Procedures Act. Service of a notice of appeal does not stay the disciplinary panel's or the department's decision pending completion of the appellate process."

SECTION     7.     Sections 40-30-300 and 40-30-310 of the 1976 Code are amended to read:

    "Section     40-30-300.     (A)     Every communication, whether oral or written, made by or on behalf of a person an individual, to the director or the disciplinary panel, whether by way of complaint or testimony, is privileged, and no action or proceeding, civil or criminal, may be brought against the person individual, by or on whose behalf the communication is made, except upon proof that the communication was made with malice.
    (B)     Nothing in this chapter may be construed as prohibiting to prohibit the respondent or his or her legal counsel from exercising the respondent's constitutional right of due process under the law, including, but not limited to, nor as prohibiting the respondent from respondent's right to have normal access to the charges and evidence filed against him or her as part of due process under the law.

Section 40-30-310.     (A)     It is unlawful for a person an individual to:
        (1)     hold himself or herself out as a massage/bodywork therapist unless licensed under pursuant to this chapter;
        (2)     permit allow an employed person individual to practice massage/bodywork unless licensed under pursuant to this chapter;
        (3)     present as his or her own the license of another;
        (4)     allow the use of his or her license by an unlicensed person individual;
        (5)     give false or forged evidence to the department in obtaining a license under pursuant to this chapter;
        (6)     falsely impersonate another license holder of like or different name;
        (7)     use or attempt to use a license that has been revoked;
        (8)     otherwise violate a provision of this chapter or a regulation promulgated pursuant to this chapter.
    (B)     The department may institute civil action in the circuit court, in the name of the State, for injunctive relief against any person an individual violating the provisions a provision of this chapter or the regulations a regulation promulgated pursuant to this chapter or orders an order of the department or disciplinary the panel. For each violation, the court may in its discretion, impose a fine of no more than one thousand dollars."

SECTION     8.     Sections 40-30-65, 40-30-70, and 40-30-210 of the 1976 Code are repealed.

SECTION     9.     This act takes effect upon approval by the Governor.         /
    Renumber sections to conform.
    Amend title to conform.