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92_HB2271ren HB2271 Re-Enrolled LRB9205123LBgc 1 AN ACT concerning the regulation of professions. 2 Be it enacted by the People of the State of Illinois, 3 represented in the General Assembly: 4 Section 1. Short title. This Act may be cited as the 5 Massage Licensing Act. 6 Section 5. Declaration of public policy. The practice 7 of massage therapy is hereby declared to affect the public 8 health, safety, and welfare and to be subject to regulation 9 in the public interest. The purpose of this Act is to 10 protect and benefit the public by setting standards of 11 qualifications, education, training, and experience for those 12 who seek to practice massage therapy, to promote high 13 standards of professional performance for those licensed to 14 practice massage therapy in the State of Illinois, and to 15 protect the public from unprofessional conduct by persons 16 licensed to practice massage therapy. 17 Section 10. Definitions. As used in this Act: 18 "Approved massage school" means a facility which meets 19 minimum standards for training and curriculum as determined 20 by the Department. 21 "Board" means the Massage Therapy Board appointed by the 22 Director. 23 "Compensation" means the payment, loan, advance, 24 donation, contribution, deposit, or gift of money or anything 25 of value. 26 "Department" means the Department of Professional 27 Regulation. 28 "Director" means the Director of Professional Regulation. 29 "Massage" or "massage therapy" means a system of 30 structured palpation or movement of the soft tissue of the HB2271 Re-Enrolled -2- LRB9205123LBgc 1 body. The system may include, but is not limited to, 2 techniques such as effleurage or stroking and gliding, 3 petrissage or kneading, tapotement or percussion, friction, 4 vibration, compression, and stretching activities as they 5 pertain to massage therapy. These techniques may be applied 6 by a licensed massage therapist with or without the aid of 7 lubricants, salt or herbal preparations, hydromassage, 8 thermal massage, or a massage device that mimics or enhances 9 the actions possible by human hands. The purpose of the 10 practice of massage, as licensed under this Act, is to 11 enhance the general health and well-being of the mind and 12 body of the recipient. "Massage" does not include the 13 diagnosis of a specific pathology. "Massage" does not include 14 those acts of physical therapy or therapeutic or corrective 15 measures that are outside the scope of massage therapy 16 practice as defined in this Section. 17 "Massage therapist" means a person who is licensed by the 18 Department and administers massage for compensation. 19 "Professional massage or bodywork therapy association" 20 means a state or nationally chartered organization that is 21 devoted to the massage specialty and therapeutic approach and 22 meets the following requirements: 23 (1) The organization requires that its members meet 24 minimum educational requirements. The educational 25 requirements must include anatomy, physiology, hygiene, 26 sanitation, ethics, technical theory, and application of 27 techniques. 28 (2) The organization has an established code of 29 ethics and has procedures for the suspension and 30 revocation of membership of persons violating the code of 31 ethics. 32 Section 15. Licensure requirements. Beginning January 1, 33 2004, persons engaged in massage for compensation must be HB2271 Re-Enrolled -3- LRB9205123LBgc 1 licensed by the Department. The Department shall issue a 2 license to an individual who meets all of the following 3 requirements: 4 (1) The applicant has applied in writing on the 5 prescribed forms and has paid the required fees. 6 (2) The applicant is at least 18 years of age and 7 of good moral character. In determining good moral 8 character, the Department may take into consideration 9 conviction of any crime under the laws of the United 10 States or any state or territory thereof that is a felony 11 or a misdemeanor or any crime that is directly related to 12 the practice of the profession. Such a conviction shall 13 not operate automatically as a complete bar to a license, 14 except in the case of any conviction for prostitution, 15 rape, or sexual misconduct, or where the applicant is a 16 registered sex offender. 17 (3) The applicant has met one of the following 18 requirements: 19 (A) has successfully completed the curriculum 20 or curriculums of one or more massage therapy 21 schools approved by the Department that require a 22 minimum of 500 hours and has passed a competency 23 examination approved by the Department; 24 (B) holds a current license from another 25 jurisdiction having licensure requirements that meet 26 or exceed those defined within this Act; or 27 (C) has moved to Illinois from a jurisdiction 28 with no licensure requirement and has provided 29 documentation that he or she has successfully passed 30 the National Certification Board of Therapeutic 31 Massage and Bodywork's examination or another 32 massage therapist certifying examination approved by 33 the Department and maintains current certification. HB2271 Re-Enrolled -4- LRB9205123LBgc 1 Section 20. Grandfathering provision. 2 (a) For a period of one year after the effective date of 3 the rules adopted under this Act, the Department may issue a 4 license to an individual who, in addition to meeting the 5 requirements set forth in paragraphs (1) and (2) of Section 6 15, produces proof that he or she has met at least one of the 7 following requirements before the effective date of this Act: 8 (1) has been an active member, for a period of at 9 least one year prior to the application for licensure, of 10 a national professional massage therapy organization 11 established prior to the year 2000, which offers 12 professional liability insurance and a code of ethics; 13 (2) has passed the National Certification Exam of 14 Therapeutic Massage and Bodywork and has kept his or her 15 certification current; 16 (3) has practiced massage therapy an average of at 17 least 10 hours per week for at least 10 years; or 18 (4) has practiced massage therapy an average of at 19 least 10 hours per week for at least one year prior to 20 the effective date of this Act and has completed at 21 least 100 hours of formal training in massage therapy. 22 (b) An applicant who can show proof of having engaged in 23 the practice of massage therapy for at least 10 hours per 24 week for a minimum of one year prior to the effective date of 25 this Act and has less than 100 hours of formal training or 26 has been practicing for less than one year with 100 hours of 27 formal training must complete at least 100 additional hours 28 of formal training consisting of at least 25 hours in anatomy 29 and physiology by January 1, 2004. 30 (c) An applicant who has training from another state or 31 country may qualify for a license under subsection (a) by 32 showing proof of meeting the requirements of that state or 33 country and demonstrating that those requirements are 34 substantially the same as the requirements in this Section. HB2271 Re-Enrolled -5- LRB9205123LBgc 1 (d) For purposes of this Section, "formal training" means 2 a massage therapy curriculum approved by the Illinois State 3 Board of Education or the Illinois Board of Higher Education 4 or course work provided by continuing education sponsors 5 approved by the Department. 6 Section 25. Exemptions. 7 (a) This Act does not prohibit a person licensed under 8 any other Act in this State from engaging in the practice for 9 which he or she is licensed. 10 (b) Persons exempted under this Section include, but 11 are not limited to, physicians, podiatrists, naprapaths, and 12 physical therapists. 13 (c) Nothing in this Act prohibits qualified members of 14 other professional groups, including but not limited to 15 nurses, occupational therapists, cosmetologists, and 16 estheticians, from performing massage in a manner consistent 17 with their training and the code of ethics of their 18 respective professions. 19 (d) Nothing in this Act prohibits a student of an 20 approved massage school or program from performing massage, 21 provided that the student does not hold himself or herself 22 out as a licensed massage therapist and does not charge a fee 23 for massage therapy services. 24 (e) Nothing in this Act prohibits practitioners that do 25 not involve intentional soft tissue manipulation, including 26 but not limited to Alexander Technique, Feldenkrais, Reike, 27 and Therapeutic Touch, from practicing. 28 (f) Practitioners of certain service marked bodywork 29 approaches that do involve intentional soft tissue 30 manipulation, including but not limited to Rolfing, Trager 31 Approach, Polarity Therapy, and Orthobionomy, are exempt from 32 this Act if they are approved by their governing body based 33 on a minimum level of training, demonstration of competency, HB2271 Re-Enrolled -6- LRB9205123LBgc 1 and adherence to ethical standards. 2 (g) Practitioners of Asian bodywork approaches are 3 exempt from this Act if they are members of the American 4 Organization of Bodywork Therapies of Asia as certified 5 practitioners or if they are approved by an Asian bodywork 6 organization based on a minimum level of training, 7 demonstration of competency, and adherence to ethical 8 standards set by their governing body. 9 (h) Practitioners of other forms of bodywork who 10 restrict manipulation of soft tissue to the feet, hands, and 11 ears, and who do not have the client disrobe, such as 12 reflexology, are exempt from this Act. 13 (i) Nothing in this Act applies to massage therapists 14 from other states or countries when providing educational 15 programs or services for a period not exceeding 30 days 16 within a calendar year. 17 (j) Nothing in this Act prohibits a person from treating 18 ailments by spiritual means through prayer alone in 19 accordance with the tenets and practices of a recognized 20 church or religious denomination. 21 Section 30. Title protection. 22 (a) Persons regulated by this Act are designated as 23 massage therapists and therefore are exclusively entitled to 24 utilize the terms "massage", "massage therapy", and "massage 25 therapist" when advertising or printing promotional material. 26 (b) Anyone who knowingly aids and abets one or more 27 persons not authorized to use a professional title regulated 28 by this Act or knowingly employs persons not authorized to 29 use the regulated professional title in the course of their 30 employment, commits a violation of this Act. 31 (c) Anyone not authorized, under the definitions of this 32 Act, to utilize the term "massage", "massage therapy", or 33 "massage therapist" and who knowingly utilizes these terms HB2271 Re-Enrolled -7- LRB9205123LBgc 1 when advertising commits a violation of this Act. 2 Section 35. Massage Licensing Board. 3 (a) The Director shall appoint a Massage Licensing 4 Board, which shall serve in an advisory capacity to the 5 Director. The Board shall consist of 7 members, of whom 6 6 shall be massage therapists with at least 3 years of 7 experience in massage. One of the massage therapist members 8 shall represent a massage therapy school from the private 9 sector and one of the massage therapist members shall 10 represent a massage therapy school from the public sector. 11 One member of the Board shall be a member of the public who 12 is not licensed under this Act or a similar Act in Illinois 13 or another jurisdiction. Membership on the Board shall 14 reasonably reflect the various massage therapy and non-exempt 15 bodywork organizations. Membership on the Board shall 16 reasonably reflect the geographic areas of the State. 17 (b) Members shall be appointed to a 3-year term, except 18 that initial appointees shall serve the following terms: 2 19 members including the non-voting member shall serve for one 20 year, 2 members shall serve for 2 years, and 3 members shall 21 serve for 3 years. A member whose term has expired shall 22 continue to serve until his or her successor is appointed. 23 No member shall be reappointed to the Board for a term that 24 would cause his or her continuous service on the Board to 25 exceed 9 years. Appointments to fill vacancies shall be made 26 in the same manner as the original appointments for the 27 unexpired portion of the vacated term. 28 (c) The members of the Board are entitled to receive 29 compensation for all legitimate and necessary expenses 30 incurred while attending Board and Department meetings. 31 (d) Members of the Board shall be immune from suit in 32 any action based upon any disciplinary proceedings or other 33 activities performed in good faith as members of the Board. HB2271 Re-Enrolled -8- LRB9205123LBgc 1 (e) The Director shall consider the recommendations of 2 the Board on questions involving the standards of 3 professional conduct, discipline, and qualifications of 4 candidates and licensees under this Act. Nothing shall limit 5 the ability of the Board to provide recommendations to the 6 Director in regard to any matter affecting the administration 7 of this Act. The Director shall give due consideration to 8 all recommendations of the Board. If the Director takes 9 action contrary to a recommendation of the Board, the 10 Director shall provide a written explanation of that action. 11 (f) The Director may terminate the appointment of any 12 member for cause which, in the opinion of the Director 13 reasonably justifies termination, which may include, but is 14 not limited to, a Board member who does not attend 2 15 consecutive meetings. 16 Section 40. Duties of the Department. Subject to 17 provisions of this Act, the Department shall: 18 (1) Formulate rules required for the administration 19 of this Act. Notice of proposed rule making shall be 20 transmitted to the Board and the Department shall review 21 the Board's response and any recommendations made in the 22 response. 23 (2) Determine the qualifications of an applicant 24 for licensure by endorsement. 25 (3) Conduct hearings or proceedings to refuse to 26 issue or renew or to revoke a license or to suspend, 27 place on probation, reprimand, or otherwise discipline a 28 person licensed under this Act. 29 (4) Solicit the advice and expert knowledge of the 30 Board on any matter relating to the administration and 31 enforcement of this Act. 32 (5) Maintain a roster of the names and addresses of 33 all licensees and all persons whose licenses have been HB2271 Re-Enrolled -9- LRB9205123LBgc 1 suspended, revoked, or denied renewal for cause within 2 the previous calendar year. The roster shall be 3 available upon written request and payment of the 4 required fee. 5 Section 45. Grounds for discipline. 6 (a) The Department may refuse to issue or renew, or may 7 revoke, suspend, place on probation, reprimand, or take other 8 disciplinary action, as the Department considers appropriate, 9 including the imposition of fines not to exceed $1,000 for 10 each violation, with regard to any license or licensee for 11 any one or more of the following: 12 (1) being convicted of any crime under the laws of 13 the United States or any state or territory thereof that 14 is a felony or a misdemeanor, an essential element of 15 which is dishonesty, or any that is directly related to 16 the practice of massage. Conviction, as used in this 17 paragraph, shall include a finding or verdict of guilty, 18 an admission of guilt, or a plea of nolo contendere; 19 (2) advertising in a false, deceptive, or 20 misleading manner; 21 (3) aiding, assisting, procuring, or advising any 22 unlicensed person to practice massage contrary to any 23 rules or provisions of this Act; 24 (4) engaging in immoral conduct in the commission 25 of any act, such as sexual abuse, sexual misconduct, or 26 sexual exploitation, related to the licensee's practice; 27 (5) engaging in dishonorable, unethical, or 28 unprofessional conduct of a character likely to deceive, 29 defraud, or harm the public; 30 (6) practicing or offering to practice beyond the 31 scope permitted by law or accepting and performing 32 professional responsibilities which the licensee knows or 33 has reason to know that he or she is not competent to HB2271 Re-Enrolled -10- LRB9205123LBgc 1 perform; 2 (7) knowingly delegating professional 3 responsibilities to a person unqualified by training, 4 experience, or licensure to perform; 5 (8) failing to provide information in response to a 6 written request made by the Department within 60 days; 7 (9) having a habitual or excessive use of or 8 addiction to alcohol, narcotics, stimulants, or any other 9 chemical agent or drug which results in the inability to 10 practice with reasonable judgment, skill, or safety; 11 (10) having a pattern of practice or other behavior 12 that demonstrates incapacity or incompetence to practice 13 under this Act; 14 (11) making a material misstatement in furnishing 15 information to the Department or otherwise making 16 misleading, deceptive, untrue, or fraudulent 17 representations in violation of this Act or otherwise in 18 the practice of the profession; 19 (12) making any misrepresentation for the purpose 20 of obtaining a license; or 21 (13) having a physical illness, including but not 22 limited to deterioration through the aging process or 23 loss of motor skills, that results in the inability to 24 practice the profession with reasonable judgment, skill, 25 or safety. 26 (b) The Department may refuse to issue or may suspend 27 the license of any person who fails to file a tax return, to 28 pay the tax, penalty, or interest shown in a filed tax 29 return, or to pay any final assessment of tax, penalty, or 30 interest, as required by any tax Act administered by the 31 Illinois Department of Revenue, until such time as the 32 requirements of the tax Act are satisfied. 33 (c) The determination by a circuit court that a licensee 34 is subject to involuntary admission or judicial admission, as HB2271 Re-Enrolled -11- LRB9205123LBgc 1 provided in the Mental Health and Developmental Disabilities 2 Code, operates as an automatic suspension. The suspension 3 will end only upon (i) a finding by a court that the patient 4 is no longer subject to involuntary admission or judicial 5 admission and the issuance of a court order so finding and 6 discharging the patient and (ii) the recommendation of the 7 Board to the Director that the licensee be allowed to resume 8 his or her practice. 9 (d) In enforcing this Section, the Department or Board 10 upon a showing of a possible violation may compel an 11 individual licensed to practice under this Act, or who has 12 applied for licensure under this Act, to submit to a mental 13 or physical examination, or both, as required by and at the 14 expense of the Department. The Department or Board may order 15 the examining physician to present testimony concerning the 16 mental or physical examination of the licensee or applicant. 17 No information shall be excluded by reason of any common law 18 or statutory privilege relating to communications between the 19 licensee or applicant and the examining physician. The 20 examining physicians shall be specifically designated by the 21 Board or Department. The individual to be examined may have, 22 at his or her own expense, another physician of his or her 23 choice present during all aspects of this examination. The 24 examination shall be performed by a physician licensed to 25 practice medicine in all its branches. Failure of an 26 individual to submit to a mental or physical examination, 27 when directed, shall be grounds for suspension of his or her 28 license until the individual submits to the examination if 29 the Department finds, after notice and hearing, that the 30 refusal to submit to the examination was without reasonable 31 cause. 32 If the Department or Board finds an individual unable to 33 practice because of the reasons set forth in this Section, 34 the Department or Board may require that individual to submit HB2271 Re-Enrolled -12- LRB9205123LBgc 1 to care, counseling, or treatment by physicians approved or 2 designated by the Department or Board, as a condition, term, 3 or restriction for continued, reinstated, or renewed 4 licensure to practice; or, in lieu of care, counseling, or 5 treatment, the Department may file, or the Board may 6 recommend to the Department to file, a complaint to 7 immediately suspend, revoke, or otherwise discipline the 8 license of the individual. An individual whose license was 9 granted, continued, reinstated, renewed, disciplined or 10 supervised subject to such terms, conditions, or 11 restrictions, and who fails to comply with such terms, 12 conditions, or restrictions, shall be referred to the 13 Director for a determination as to whether the individual 14 shall have his or her license suspended immediately, pending 15 a hearing by the Department. 16 In instances in which the Director immediately suspends a 17 person's license under this Section, a hearing on that 18 person's license must be convened by the Department within 15 19 days after the suspension and completed without appreciable 20 delay. The Department and Board shall have the authority to 21 review the subject individual's record of treatment and 22 counseling regarding the impairment to the extent permitted 23 by applicable federal statutes and regulations safeguarding 24 the confidentiality of medical records. 25 An individual licensed under this Act and affected under 26 this Section shall be afforded an opportunity to demonstrate 27 to the Department or Board that he or she can resume practice 28 in compliance with acceptable and prevailing standards under 29 the provisions of his or her license. 30 Section 50. Advertising. It is a misdemeanor for any 31 person, organization, or corporation to advertise massage 32 services unless the person providing the service holds a 33 valid license under this Act, except for those excluded HB2271 Re-Enrolled -13- LRB9205123LBgc 1 licensed professionals who are allowed to include massage in 2 their scope of practice. A massage therapist may not 3 advertise unless he or she has a current license issued by 4 this State. "Advertise" as used in this Section includes, 5 but is not limited to, the issuance of any card, sign, or 6 device to any person; the causing, permitting, or allowing of 7 any sign or marking on or in any building, vehicle, or 8 structure; advertising in any newspaper or magazine; any 9 listing or advertising in any directory under a 10 classification or heading that includes the words "massage", 11 "massage therapist", "therapeutic massage", or "massage 12 therapeutic"; or commercials broadcast by any means. 13 Section 55. Exclusive jurisdiction. Beginning January 1, 14 2004, the regulation and licensing of massage therapy is an 15 exclusive power and function of the State. Beginning January 16 1, 2004, a home rule unit may not regulate or license massage 17 therapists. This Section is a denial and limitation of home 18 rule powers and functions under subsection (h) of Section 6 19 of Article VII of the Illinois Constitution. 20 Section 60. Administrative Procedure Act. The Illinois 21 Administrative Procedure Act is hereby expressly adopted and 22 incorporated herein as if all of the provisions of that Act 23 were included in this Act, except that the provision of 24 subsection (d) of Section 10-65 of the Illinois 25 Administrative Procedure Act that provides that at hearings 26 the licensee has the right to show compliance with all lawful 27 requirements for retention, continuation, or renewal of the 28 license is specifically excluded. For the purposes of this 29 Act the notice required under Section 10-25 of the 30 Administrative Procedure Act is deemed sufficient when mailed 31 to the last known address of a party. HB2271 Re-Enrolled -14- LRB9205123LBgc 1 Section 65. Renewal of licenses. The expiration date 2 and renewal period for each license issued under this Act 3 shall be set by rule. 4 Section 67. Continuing education. The Department shall 5 adopt rules for continuing education for persons licensed 6 under this Act that require a completion of 24 hours of 7 approved continuing education per license renewal period. 8 The Department shall establish by rule a means for the 9 verification of completion of the continuing education 10 required by this Section. This verification may be 11 accomplished through audits of records maintained by the 12 licensee, by requiring the filing of continuing education 13 certificates with the Department, or by other means 14 established by the Department. 15 Section 70. Restoration of expired licenses. A massage 16 therapist who has permitted his or her license to expire or 17 who has had his or her license on inactive status may have 18 his or her license restored by making application to the 19 Department and filing proof acceptable to the Department of 20 his or her fitness to have his or her license restored, 21 including sworn evidence certifying to active practice in 22 another jurisdiction satisfactory to the Department, and by 23 paying the required restoration fee and showing proof of 24 completion of required continuing education. Licensees must 25 provide proof of completion of 24 hours approved continuing 26 education to renew their license. 27 If the massage therapist has not maintained an active 28 practice in another jurisdiction satisfactory to the 29 Department, the Board shall determine, by an evaluation 30 program established by rule his or her fitness to resume 31 active status and may require the massage therapist to 32 complete a period of evaluated clinical experience and may HB2271 Re-Enrolled -15- LRB9205123LBgc 1 require successful completion of an examination. 2 A massage therapist whose license has been expired or 3 placed on inactive status for more than 5 years may have his 4 or her license restored by making application to the 5 Department and filing proof acceptable to the Department of 6 his or her fitness to have his or her license restored, 7 including sworn evidence certifying to active practice in 8 another jurisdiction, by paying the required restoration fee, 9 and by showing proof of the completion of 24 hours of 10 continuing education. 11 However, a massage therapist whose license has expired 12 while he or she has been engaged (i) in active duty with the 13 Army of the United States, the United States Navy, the Marine 14 Corps, the Air Force, the Coast Guard, or the State Militia 15 called into the service or training of the United States of 16 America, or (ii) in training or education under the 17 supervision of the United States preliminary to induction 18 into the military service, may have his or her license 19 restored without paying any lapsed renewal fees or 20 restoration fee if, within 2 years after termination of the 21 service, training, or education, other than by dishonorable 22 discharge, he or she furnishes the Department with an 23 affidavit to the effect that he or she has been so engaged 24 and that his or her service, training, or education has been 25 terminated. 26 Section 75. Inactive licenses. Any massage therapist 27 who notifies the Department in writing on forms prescribed by 28 the Department may elect to place his or her license on 29 inactive status and shall, subject to rules of the 30 Department, be excused from payment of renewal fees until he 31 or she notifies the Department in writing of his or her 32 desire to resume active status. 33 A massage therapist requesting restoration from inactive HB2271 Re-Enrolled -16- LRB9205123LBgc 1 status shall be required to pay the current renewal fee and 2 shall be required to restore his or her license as provided 3 in Section 70 of this Act. 4 Any massage therapist whose license is on inactive status 5 shall not practice massage therapy in the State, and any 6 practice conducted shall be deemed unlicensed practice. 7 Section 80. Fees. The fees assessed under this Act 8 shall be set by rule. 9 Section 85. Deposit of fees and fines; appropriations. 10 All fees and fines collected under this Act shall be 11 deposited into the General Professions Dedicated Fund. All 12 moneys in the Fund shall be used by the Department of 13 Professional Regulation, as appropriated, for the ordinary 14 and contingent expenses of the Department. 15 Section 90. Violations; injunction; cease and desist 16 order. 17 (a) If any person violates a provision of this Act, the 18 Director may, in the name of the People of the State of 19 Illinois, through the Attorney General of the State of 20 Illinois or the State's Attorney in the county in which the 21 offense occurs, petition for an order enjoining the violation 22 or for an order enforcing compliance with this Act. Upon the 23 filing of a verified petition in court, the court may issue a 24 temporary restraining order, without notice or bond, and may 25 preliminarily and permanently enjoin the violation. If it is 26 established that the person has violated or is violating the 27 injunction, the court may punish the offender for contempt of 28 court. Proceedings under this Section shall be in addition 29 to, and not in lieu of, all other remedies and penalties 30 provided by this Act. 31 (b) If, after January 1, 2004, any person practices as a HB2271 Re-Enrolled -17- LRB9205123LBgc 1 massage therapist or holds himself or herself out as a 2 massage therapist without being licensed under the provisions 3 of this Act, then the Director, any licensed massage 4 therapist, any interested party, or any person injured 5 thereby may petition for relief as provided in subsection 6 (a) of this Section or may apply to the circuit court of the 7 county in which the violation or some part thereof occurred, 8 or in which the person complained of has his or her principal 9 place of business or resides, to prevent the violation. The 10 court has jurisdiction to enforce obedience by injunction or 11 by other process restricting the person complained of from 12 further violation and enjoining upon him or her obedience. 13 (c) Whenever, in the opinion of the Department, a person 14 violates any provision of this Act, the Department may issue 15 a rule to show cause why an order to cease and desist should 16 not be entered against him. The rule shall clearly set forth 17 the grounds relied upon by the Department and shall provide a 18 period of 7 days from the date of the rule to file an answer 19 to the satisfaction of the Department. Failure to answer to 20 the satisfaction of the Department shall cause an order to 21 cease and desist to be issued immediately. 22 Section 95. Investigations; notice and hearing. The 23 Department may investigate the actions of any applicant or of 24 any person holding or claiming to hold a license. The 25 Department shall, before refusing to issue or renew a license 26 or to discipline a licensee pursuant to Section 45, notify 27 the applicant or holder of a license in writing, at least 30 28 days prior to the date set for the hearing, of the nature of 29 the charges and that a hearing will be held on the date 30 designated. The notice shall direct the applicant or 31 licensee to file a written answer to the Board under oath 32 within 20 days after the service of the notice, and shall 33 inform the applicant or licensee that failure to file an HB2271 Re-Enrolled -18- LRB9205123LBgc 1 answer will result in a default judgment being entered 2 against the applicant or licensee. A default judgment may 3 result in the license being suspended, revoked, or placed on 4 probationary status, or other disciplinary action may be 5 taken, including limiting the scope, nature, or extent of 6 practice, as the Director may deem proper. Written notice may 7 be served by personal delivery or certified or registered 8 mail to the respondent at the address of his or her last 9 notification to the Department. In case the person fails to 10 file an answer after receiving notice, his or her license or 11 certificate may, in the discretion of the Department, be 12 suspended, revoked, or placed on probationary status and the 13 Department may take whatever disciplinary action it deems 14 proper, including limiting the scope, nature, or extent of 15 the person's practice or the imposition of a fine, without a 16 hearing, if the act or acts charged constitute sufficient 17 grounds for that action under this Act. At the time and place 18 fixed in the notice, the Board shall proceed to hear the 19 charges and the parties or their counsel shall be accorded 20 ample opportunity to present statements, testimony, evidence 21 and argument that may be pertinent to the charges or to the 22 licensee's defense. The Board may continue a hearing from 23 time to time. 24 Section 100. Stenographer; transcript. The Department, 25 at its expense, shall preserve a record of all proceedings at 26 the formal hearing of any case involving the refusal to issue 27 or renew a license or the discipline of a licensee. The 28 notice of hearing, complaint and all other documents in the 29 nature of pleadings and written motions filed in the 30 proceedings, the transcript of testimony, the report of the 31 Board, and the order of the Department shall be the record of 32 the proceeding. HB2271 Re-Enrolled -19- LRB9205123LBgc 1 Section 105. Compelling testimony. Any circuit court, 2 upon application of the Department or its designee or of the 3 applicant or licensee against whom proceedings pursuant to 4 Section 95 of this Act are pending, may enter an order 5 requiring the attendance of witnesses and their testimony and 6 the production of documents, papers, files, books, and 7 records in connection with any hearing or investigation. The 8 court may compel obedience to its order by proceedings for 9 contempt. 10 Section 110. Findings and recommendations. At the 11 conclusion of the hearing, the Board shall present to the 12 Director a written report of its findings and 13 recommendations. The report shall contain a finding of 14 whether or not the accused person violated this Act or failed 15 to comply with the conditions required in this Act. The 16 Board shall specify the nature of the violation or failure to 17 comply and shall make its recommendations to the Director. 18 The report of findings and recommendations of the Board 19 shall be the basis for the Department's order or refusal or 20 for the granting of a license unless the Director shall 21 determine that the Board's report is contrary to the manifest 22 weight of the evidence, in which case the Director may issue 23 an order in contravention of the Board's report. The finding 24 is not admissible in evidence against the person in a 25 criminal prosecution brought for the violation of this Act, 26 but the hearing and finding are not a bar to a criminal 27 prosecution brought for the violation of this Act. 28 Section 115. Rehearing. In any case involving the 29 refusal to issue or renew a license or discipline of a 30 licensee, a copy of the Board's report shall be served upon 31 the respondent by the Department, either personally or as 32 provided in this Act for the service of the notice of HB2271 Re-Enrolled -20- LRB9205123LBgc 1 hearing. Within 20 days after service, the respondent may 2 present to the Department a motion, in writing and specifying 3 particular grounds, for a rehearing. If no motion for 4 rehearing is filed, then upon the expiration of the time 5 specified for filing the motion, or if a motion for rehearing 6 is denied, then upon the denial, the Director may enter an 7 order in accordance with recommendations of the Board, except 8 as provided in Section 110 of this Act. If the respondent 9 shall order from the reporting service and pay for a 10 transcript of the record within the time for filing a motion 11 for rehearing, the 20 day period within which the motion may 12 be filed shall commence upon the delivery of the transcript 13 to the respondent. 14 Section 120. Director; rehearing. Whenever the Director 15 is satisfied that substantial justice has not been done in 16 the revocation, suspension, or refusal to issue or renew a 17 license, the Director may order a rehearing by the same or 18 other examiners. 19 Section 125. Appointment of a hearing officer. The 20 Director shall have the authority to appoint any attorney 21 duly licensed to practice law in this State to serve as the 22 hearing officer in any action for refusal to issue or renew a 23 license or permit or for the discipline of a licensee. The 24 hearing officer shall have full authority to conduct the 25 hearing. At least one member of the Board shall attend each 26 hearing. The hearing officer shall report his or her findings 27 and recommendations to the Board and the Director. The Board 28 shall have 60 days after receipt of the report to review the 29 report of the hearing officer and present its findings of 30 fact, conclusions of law, and recommendations to the 31 Director. If the Board fails to present its report within 32 the 60-day period, the Director shall issue an order based on HB2271 Re-Enrolled -21- LRB9205123LBgc 1 the report of the hearing officer. If the Director 2 determines that the Board's report is contrary to the 3 manifest weight of the evidence, he or she may issue an order 4 in contravention of the Board's report. 5 Section 130. Order or certified copy; prima facie proof. 6 An order or a certified copy thereof, over the seal of the 7 Department and purporting to be signed by the Director, shall 8 be prima facie proof that: 9 (1) the signature is the genuine signature of the 10 Director; 11 (2) the Director is duly appointed and qualified; 12 and 13 (3) the Board and the members of the Board are 14 qualified to act. 15 Section 135. Restoration of suspended or revoked 16 license. At any time after the suspension or revocation of a 17 license, the Department may restore it to the accused person 18 upon the written recommendation of the Board, unless after an 19 investigation and a hearing, the Board determines that 20 restoration is not in the public interest. 21 Section 140. Surrender of license. Upon the revocation 22 or suspension of any license, the licensee shall surrender 23 the license to the Department and, if the licensee fails to 24 do so, the Department shall have the right to seize the 25 license. 26 Section 145. Temporary suspension of a license. The 27 Director may temporarily suspend the license of a massage 28 therapist without a hearing, simultaneously with the 29 institution of proceedings for a hearing provided for in 30 Section 95 of this Act, if the Director finds that the HB2271 Re-Enrolled -22- LRB9205123LBgc 1 evidence in his or her possession indicates that continuation 2 in practice would constitute an imminent danger to the 3 public. In the event that the Director temporarily suspends 4 the license of a massage therapist without a hearing, a 5 hearing by the Board must be held within 30 calendar days 6 after the suspension has occurred. 7 Section 150. Administrative review; venue. All final 8 administrative decisions of the Department are subject to 9 judicial review pursuant to the Administrative Review Law and 10 its rules. The term "administrative decision" is defined as 11 in Section 3-101 of the Code of Civil Procedure. 12 Proceedings for judicial review shall be commenced in the 13 circuit court of the county in which the party applying for 14 relief resides; but if the party is not a resident of this 15 State, the venue shall be in Sangamon County. 16 The Department shall not be required to certify any 17 record to the court or file any answer in court or otherwise 18 appear in any court in a judicial review proceeding, unless 19 there is filed in the court, with the complaint, a receipt 20 from the Department acknowledging payment of the costs of 21 furnishing and certifying the record. Failure on the part of 22 the plaintiff to file a receipt in court shall be grounds for 23 dismissal of the action. 24 Section 155. Violations. A person who is found to have 25 violated any provision of this Act is guilty of a Class A 26 misdemeanor for the first offense and a Class 4 felony for 27 the second and any subsequent offense. 28 Section 160. Returned checks; fines. Any person who 29 delivers a check or other payment to the Department that is 30 returned to the Department unpaid by the financial 31 institution upon which it is drawn shall pay to the HB2271 Re-Enrolled -23- LRB9205123LBgc 1 Department, in addition to the amount already owed to the 2 Department, a fine of $50. If the check or other payment was 3 for a renewal or issuance fee and that person practices 4 without paying the renewal fee or issuance fee and the fine 5 due, an additional fine of $100 shall be imposed. The fines 6 imposed by this Section are in addition to any other 7 discipline provided under this Act for unlicensed practice or 8 practice on a nonrenewed license. The Department shall notify 9 the person that payment of fees and fines shall be paid to 10 the Department by certified check or money order within 30 11 calendar days of the notification. If, after the expiration 12 of 30 days from the date of the notification, the person has 13 failed to submit the necessary remittance, the Department 14 shall automatically terminate the license or deny the 15 application, without hearing. If, after termination or 16 denial, the person seeks a license, he or she shall apply to 17 the Department for restoration or issuance of the license and 18 pay all fees and fines due to the Department. The Department 19 may establish a fee for the processing of an application for 20 restoration of a license to pay all expenses of processing 21 this application. The Director may waive the fines due under 22 this Section in individual cases where the Director finds 23 that the fines would be unreasonable or unnecessarily 24 burdensome. 25 Section 165. Unlicensed practice; violation; civil 26 penalty. 27 (a) Any person who practices, offers to practice, 28 attempts to practice, or holds himself or herself out to 29 practice massage therapy or as a massage therapist without 30 being licensed under this Act shall, in addition to any other 31 penalty provided by law, pay a civil penalty to the 32 Department in an amount not to exceed $5,000 for each offense 33 as determined by the Department. The civil penalty shall be HB2271 Re-Enrolled -24- LRB9205123LBgc 1 assessed by the Department after a hearing is held in 2 accordance with the provisions set forth in this Act 3 regarding the provision of a hearing for the discipline of a 4 licensee. 5 (b) The Department has the authority and power to 6 investigate any unlicensed activity. 7 (c) The civil penalty shall be paid within 60 days after 8 the effective date of the order imposing the civil penalty. 9 The order shall constitute a judgment and may be filed and 10 execution had thereon in the same manner as any judgment from 11 any court of record. 12 Section 170. Severability. If any provision of this Act 13 or the application of any provision of this Act to any person 14 or circumstance is held invalid, the invalidity does not 15 affect other provisions or applications of the Act that can 16 be given effect without the invalid provision or application, 17 and for this purpose the provisions of this Act are 18 severable. 19 Section 950. The Regulatory Sunset Act is amended by 20 adding Section 4.22 as follows: 21 (5 ILCS 80/4.22 new) 22 Sec. 4.22. Act repealed on January 1, 2012. The 23 following Act is repealed on January 1, 2012: 24 The Massage Licensing Act.