SB1627 97TH GENERAL ASSEMBLY

LRB097 05218 CEL 45267 b

97TH GENERAL ASSEMBLY
State of Illinois
2011 and 2012
SB1627

Introduced 2/9/2011, by Sen. Heather A. Steans

SYNOPSIS AS INTRODUCED:

New Act
225 ILCS 57/25

Creates the Asian Bodywork Therapy Licensing Act. Beginning January 1, 2012, provides that it is unlawful for a person to act or assume to act as an Asian bodywork therapist, to engage in the business of Asian bodywork therapy, or to advertise or hold himself or herself out to be a licensed Asian bodywork therapist without first obtaining a license issued by the Department. Creates the Asian Bodywork Therapy Licensing Board. Allows the Department to take action, including imposing fines not to exceed $1,000 per violation, if the individual meets the requirements for grounds for disciplinary action. Grants the Department authority to petition the Attorney General or local State's Attorney office where a violation occurs to enjoin the violation or order enforcement compliance with the Act. Provides that, on a showing of a possible violation, the Department may compel an applicant or a licensee to submit to a physical or mental examination. Sets forth the powers and duties of the Department, license qualifications, grounds for discipline, civil and criminal penalties, and administrative procedures. Sets forth provisions concerning standards of practice and prohibited activities. Preempts home rule. Amends the Massage Licensing Act to exempt from that Act persons licensed under the Asian Bodywork Therapy Licensing Act.

CORRECTIONAL BUDGET AND IMPACT NOTE ACT MAY APPLY

FISCAL NOTE ACT MAY APPLY

HOME RULE NOTE ACT MAY APPLY

A BILL FOR

AN ACT concerning regulation.

Be it enacted by the People of the State of Illinois, represented in the General Assembly:

Section 1. Short title. This Act may be cited as the Asian Bodywork Therapy Licensing Act.

Section 5. Declaration of public policy. The practice of Asian bodywork therapy is hereby declared to affect the public health, safety, and welfare and to be subject to regulation in the public interest. The purpose of this Act is to protect and benefit the public by setting standards of qualifications, education, training, and experience for those who seek to practice Asian bodywork therapy, to promote high standards of professional performance for those licensed to practice Asian bodywork therapy in the State of Illinois, and to protect the public from unprofessional conduct by persons licensed to practice Asian bodywork therapy. As defined by the U.S. Department of Education Classification of Instructional Programs, Asian bodywork therapy is a profession distinct from massage therapy requiring specialized training. This Act defines educational and test standards that reflect the unique skills needed for expert-level practice of Asian bodywork therapy.

Section 10. Definitions. As used in this Act:

"Approved Asian bodywork therapy school" means a facility that meets minimum standards for training and curriculum as defined in this Act and determined by the Department.

"Asian bodywork", "Asian bodywork therapy", or "ABT" means the treatment of the human body, mind, and spirit by using pressure, stretching, and joint mobilizations. Asian bodywork is based upon Chinese medical principles for assessing and evaluating the body's energetic system. It uses traditional Asian techniques and treatment strategies to primarily affect and balance the energetic system for the purpose of treating the human body, emotions, mind, energy field, and spirit for the promotion, maintenance, and restoration of health. "Asian bodywork therapy" is a form of preventative treatment utilized by the public for the maintenance of health.

Methods of assessment and evaluation may include the Chinese 4 Pillars of examination: observation, listening, asking, and touching. Assessments are based primarily on Chinese medicine parameters relating to the balance and circulation of the 5 essential substances: Qi, Jing, Shen, Xue, and Jin-ye. Treatment may include, but is not limited to, the following: touching, pressing, or holding of the body along meridians or on acupoints primarily with the hands, stretching, external application of heat or cold, dietary, or exercise suggestions. "Asian bodywork therapy" does not include the diagnosis of a specific pathology. "Asian bodywork therapy" does not include those acts of physical therapy or therapeutic or corrective measures that are outside the scope of Asian bodywork practice as defined in this Section.

"Asian bodywork therapist" means a person who is licensed by the Department and administers Asian bodywork therapy for compensation.

"Board" means the Asian Bodywork Therapy Licensing Board appointed by the Secretary.

"Compensation" means the payment, loan, advance, donation, contribution, deposit, or gift of money or anything of value.

"Department" means the Department of Financial and Professional Regulation.

"NCCAOM" means the National Certification Commission for Acupuncture and Oriental Medicine.

"Minimum standard of training" means at least 500 hours of training, including anatomy, physiology, ethics, business, directly supervised clinical work, relevant theory, and application of techniques, in addition to any requirements added by rule.

"Secretary" means the Secretary of Financial and Professional Regulation.

Section 15. Licensure requirements.

(a) Beginning January 1, 2012, persons engaged in Asian bodywork therapy for compensation must be licensed by the Department. The Department shall issue a license to an individual who meets all of the following requirements:

(1) The applicant has applied in writing on the prescribed forms and has paid the required fees.

(2) The applicant is at least 18 years of age and of good moral character. In determining good moral character, the Department may take into consideration conviction of any crime under the laws of the United States or any state or territory thereof that is a felony or a misdemeanor or any crime that is directly related to the practice of the profession. The conviction shall not operate automatically as a complete bar to a license, except in the case of any conviction for prostitution, rape, or sexual misconduct, or where the applicant is a registered sex offender.

(3) The applicant has met one of the following requirements:

(A) has successfully completed the curriculum or curriculums of one or more Asian bodywork therapy schools approved by the Department that require a minimum standard of training of 500 hours and has passed a competency examination approved by the Department, including, but not limited to, the NCCAOM ABT Exam Module;

(B) holds a current license from another jurisdiction having licensure requirements that meet or exceed those defined within this Act; or

(C) has moved to Illinois from a jurisdiction with no licensure requirement and has provided documentation that he or she has successfully passed the ABT Exam Module administered by the NCCAOM or another Asian bodywork therapy certifying examination approved by the Department and maintains current certification.

(b) Each applicant for licensure as an Asian bodywork therapist shall have his or her fingerprints submitted to the Department of State Police in an electronic format that complies with the form and manner for requesting and furnishing criminal history record information as prescribed by the Department of State Police. These fingerprints shall be checked against the Department of State Police and Federal Bureau of Investigation criminal history record databases now and hereafter filed. The Department of State Police shall charge applicants a fee for conducting the criminal history records check, which shall be deposited into the State Police Services Fund and shall not exceed the actual cost of the records check. The Department of State Police shall furnish, upon confirmation of positive identification, records of Illinois convictions to the Department. The Department may require applicants to pay a separate fingerprinting fee, either to the Department or to a vendor. The Department, in its discretion, may allow an applicant who does not have reasonable access to a designated vendor to provide his or her fingerprints in an alternative manner. The Department may adopt any rules necessary to implement this Section.

Section 20. Grandfathering provision. For a period of one year after the effective date of the rules adopted under this Act, the Department may issue a license to an individual who, in addition to meeting the requirements set forth in paragraphs (1) and (2) of subsection (a) and subsection (b) of Section 15, produces proof that he or she has met one of the following requirements by the time of application:

(1) is a member of the American Organization for Bodywork Therapies of Asia (AOBTA) at a level of membership requiring at least 500 hours of training, including Certified Practitioner, Registered Instructor, or Certified Instructor; or

(2) has passed the ABT Exam Module administered by the National Certification Commission for Acupuncture and Oriental Medicine and has kept current certification as a Diplomate of Asian Bodywork Therapy.

Section 25. Exemptions.

(a) This Act does not prohibit a person licensed under any other Act in this State from engaging in the practice for which he or she is licensed.

(b) Nothing in this Act prohibits a student of an approved Asian bodywork school or program from performing Asian bodywork therapy, provided that the student does not hold himself or herself out as a licensed Asian bodywork therapist and does not charge a fee for Asian bodywork therapy services.

(c) Nothing in this Act applies to acupuncturists licensed in the State of Illinois.

(d) Nothing in this Act applies to Asian bodywork therapists or acupuncturists from other states or countries when providing educational programs or services for a period not exceeding 30 days within a calendar year.

Section 30. Title protection.

(a) Persons regulated by this Act are designated as Asian bodywork therapists and are exclusively entitled to utilize the general terms "Asian bodywork", "Asian bodywork therapy", or any specific titles of Asian bodywork forms when advertising or printing promotional material. Protected form-specific titles include, but are not limited to, "acupressure", "amma", "shiatsu", "chi nei tsang", and "tuina".

(b) Anyone who knowingly aids and abets one or more persons not authorized to use a professional title regulated by this Act or knowingly employs persons not authorized to use the regulated professional title in the course of their employment, commits a violation of this Act.

(c) Anyone not authorized, under the definitions of this Act, to utilize the regulated professional titles and who knowingly utilizes these terms when advertising commits a violation of this Act.

Section 35. Asian Bodywork Therapy Licensing Board.

(a) The Secretary shall appoint an Asian Bodywork Therapy Licensing Board, which shall serve in an advisory capacity to the Secretary. The Board shall consist of 7 members, of whom 6 shall be Asian bodywork therapists with at least 3 years of experience in Asian bodywork. One of the Asian bodywork therapist members shall represent an Asian bodywork therapy school. One member of the Board shall be a member of the public who is not licensed under this Act or a similar Act in Illinois or another jurisdiction. Membership on the Board shall reasonably reflect the various Asian bodywork therapy forms. Membership on the Board shall reasonably reflect the geographic areas of the State.

(b) Members shall be appointed to a 3-year term, except that initial appointees shall serve the following terms: 2 members shall serve for one year, 2 members shall serve for 2 years, and 3 members shall serve for 3 years. A member whose term has expired shall continue to serve until his or her successor is appointed. No member shall be reappointed to the Board for a term that would cause his or her continuous service on the Board to exceed 9 years. Appointments to fill vacancies shall be made in the same manner as the original appointments for the unexpired portion of the vacated term.

(c) The members of the Board are entitled to receive compensation for all legitimate and necessary expenses incurred while attending Board and Department meetings.

(d) Members of the Board shall be immune from suit in any action based upon any disciplinary proceedings or other activities performed in good faith as members of the Board.

(e) The Secretary shall consider the recommendations of the Board on questions involving the standards of professional conduct, discipline, and qualifications of candidates and licensees under this Act. Nothing shall limit the ability of the Board to provide recommendations to the Secretary in regard to any matter affecting the administration of this Act. The Secretary shall give due consideration to all recommendations of the Board. If the Secretary takes action contrary to a recommendation of the Board, the Secretary shall provide a written explanation of that action.

(f) The Secretary may terminate the appointment of any member for cause that, in the opinion of the Secretary, reasonably justifies termination, which may include, but is not limited to, a Board member who does not attend 2 consecutive meetings.

Section 40. Duties of the Department. Subject to provisions of this Act, the Department shall have the following duties:

(1) To formulate rules required for the administration of this Act. Notice of proposed rulemaking shall be transmitted to the Board, and the Department shall review the Board's response and any recommendations made in the response.

(2) To determine the qualifications of an applicant for licensure by endorsement.

(3) To conduct hearings or proceedings to refuse to issue or renew or to revoke a license or to suspend, place on probation, reprimand, or otherwise discipline a person licensed under this Act.

(4) To solicit the advice and expert knowledge of the Board on any matter relating to the administration and enforcement of this Act.

(5) To maintain a roster of the names and addresses of all licensees and all persons whose licenses have been suspended, revoked, or denied renewal for cause within the previous calendar year. The roster shall be available upon written request and payment of the required fee.

Section 45. Grounds for discipline.

(a) The Department may refuse to issue or renew or may revoke, suspend, place on probation, reprimand, or take other disciplinary action, as the Department considers appropriate, including the imposition of fines not to exceed $1,000 for each violation, with regard to any license or licensee for any one or more of the following:

(1) being convicted of any crime under the laws of the United States or any state or territory thereof that is a felony or a misdemeanor, an essential element of which is dishonesty, or any crime that is directly related to the practice of Asian bodywork therapy; convicted, as used in this item (1), shall include a finding or verdict of guilty, an admission of guilt, or a plea of nolo contendere;

(2) advertising in a false, deceptive, or misleading manner;

(3) aiding, assisting, procuring, or advising any unlicensed person to practice massage contrary to any rules or provisions of this Act;

(4) engaging in immoral conduct in the commission of any act, such as sexual abuse, sexual misconduct, or sexual exploitation, related to the licensee's practice;

(5) engaging in dishonorable, unethical, or unprofessional conduct of a character likely to deceive, defraud, or harm the public;

(6) practicing or offering to practice beyond the scope permitted by law or accepting and performing professional responsibilities that the licensee knows or has reason to know that he or she is not competent to perform;

(7) knowingly delegating professional responsibilities to a person unqualified by training, experience, or licensure to perform;

(8) failing to provide information in response to a written request made by the Department within 60 days;

(9) having a habitual or excessive use of or addiction to alcohol, narcotics, stimulants, or any other chemical agent or drug that results in the inability to practice with reasonable judgment, skill, or safety;

(10) having a pattern of practice or other behavior that demonstrates incapacity or incompetence to practice under this Act;

(11) making a material misstatement in furnishing information to the Department or otherwise making misleading, deceptive, untrue, or fraudulent representations in violation of this Act or otherwise in the practice of the profession;

(12) making any misrepresentation for the purpose of obtaining a license; or

(13) having a physical illness, including, but not limited to, deterioration through the aging process or loss of motor skills, that results in the inability to practice the profession with reasonable judgment, skill, or safety.

(b) The Department may refuse to issue or may suspend the license of any person who fails to file a tax return, to pay the tax, penalty, or interest shown in a filed tax return, or to pay any final assessment of tax, penalty, or interest, as required by any tax Act administered by the Illinois Department of Revenue, until the time as the requirements of the tax Act are satisfied.

(c) The determination by a circuit court that a licensee is subject to involuntary admission or judicial admission, as provided in the Mental Health and Developmental Disabilities Code, operates as an automatic suspension. The suspension may end only upon (i) a finding by a court that the patient is no longer subject to involuntary admission or judicial admission and the issuance of a court order so finding and discharging the patient and (ii) the recommendation of the Board to the Secretary that the licensee be allowed to resume his or her practice.

(d) In enforcing this Section, the Department or Board upon a showing of a possible violation may compel an individual licensed to practice under this Act, or who has applied for licensure under this Act, to submit to a mental or physical examination, or both, as required by and at the expense of the Department. The Department or Board may order the examining physician to present testimony concerning the mental or physical examination of the licensee or applicant. No information shall be excluded by reason of any common law or statutory privilege relating to communications between the licensee or applicant and the examining physician. The examining physicians shall be specifically designated by the Board or Department. The individual to be examined may have, at his or her own expense, another physician of his or her choice present during all aspects of this examination. The examination shall be performed by a physician licensed to practice medicine in all its branches. Failure of an individual to submit to a mental or physical examination, when directed, shall be grounds for suspension of his or her license until the individual submits to the examination if the Department finds, after notice and hearing, that the refusal to submit to the examination was without reasonable cause.

If the Department or Board finds an individual unable to practice because of the reasons set forth in this Section, the Department or Board may require that individual to submit to care, counseling, or treatment by physicians approved or designated by the Department or Board, as a condition, term, or restriction for continued, reinstated, or renewed licensure to practice; or, in lieu of care, counseling, or treatment, the Department may file, or the Board may recommend to the Department to file, a complaint to immediately suspend, revoke, or otherwise discipline the license of the individual. An individual whose license was granted, continued, reinstated, renewed, disciplined, or supervised subject to the terms, conditions, or restrictions, and who fails to comply with the terms, conditions, or restrictions, shall be referred to the Secretary for a determination as to whether the individual shall have his or her license suspended immediately, pending a hearing by the Department.

In instances where the Secretary immediately suspends a person's license under this Section, a hearing on that person's license must be convened by the Department within 15 days after the suspension and completed without appreciable delay. The Department and Board shall have the authority to review the subject individual's record of treatment and counseling regarding the impairment to the extent permitted by applicable federal statutes and regulations safeguarding the confidentiality of medical records.

An individual licensed under this Act and affected under this Section shall be afforded an opportunity to demonstrate to the Department or Board that he or she can resume practice in compliance with acceptable and prevailing standards under the provisions of his or her license.

Section 50. Advertising. It is a Class A misdemeanor for any person, organization, or corporation to advertise Asian bodywork therapy services, unless the person providing the service holds a valid license under this Act, except for those excluded licensed professionals who are allowed to include Asian bodywork therapy in their scope of practice. An Asian bodywork therapist may not advertise unless he or she has a current license issued by this State. "Advertise" as used in this Section includes, but is not limited to, the issuance of any card, sign, or device to any person; the causing, permitting, or allowing of any sign or marking on or in any building, vehicle, or structure; advertising in any newspaper or magazine; any listing or advertising in any directory under a classification or heading that includes the words "Asian bodywork", "Asian bodywork therapy", or any form-specific titles as specified in Section 30 of this Act; or commercials broadcast by any means.

Section 55. Renewal of licenses. The expiration date and renewal period for each license issued under this Act shall be set by rule.

Section 60. Continuing education. The Department shall adopt rules for continuing education for persons licensed under this Act that require a completion of 24 hours of approved continuing education per license renewal period. The Department shall establish by rule a means for the verification of completion of the continuing education required by this Section. This verification may be accomplished through audits of records maintained by the licensee, by requiring the filing of continuing education certificates with the Department, or by other means established by the Department.

Section 65. Restoration of expired licenses. An Asian bodywork therapist who has permitted his or her license to expire or who has had his or her license on inactive status may have his or her license restored by making application to the Department and filing proof acceptable to the Department of his or her fitness to have his or her license restored, including sworn evidence certifying to active practice in another jurisdiction satisfactory to the Department, and by paying the required restoration fee and showing proof of completion of required continuing education. Licensees must provide proof of completion of 24 hours approved continuing education to renew their license.

If the Asian bodywork therapist has not maintained an active practice in another jurisdiction satisfactory to the Department, the Board shall determine, by an evaluation program established by rule his or her fitness to resume active status and may require the Asian bodywork therapist to complete a period of evaluated clinical experience and may require successful completion of an examination.

An Asian bodywork therapist whose license has been expired or placed on inactive status for more than 5 years may have his or her license restored by making application to the Department and filing proof acceptable to the Department of his or her fitness to have his or her license restored, including sworn evidence certifying to active practice in another jurisdiction, by paying the required restoration fee, and by showing proof of the completion of 24 hours of continuing education.

However, an Asian bodywork therapist whose license has expired while he or she has been engaged (i) in active duty with the United States Army, Navy, Marine Corps, Air Force, or Coast Guard or the State Militia called into the service or training of the United States of America or (ii) in training or education under the supervision of the United States preliminary to induction into the military service, may have his or her license restored without paying any lapsed renewal fees or restoration fee if, within 2 years after termination of the service, training, or education, other than by dishonorable discharge, he or she furnishes the Department with an affidavit to the effect that he or she has been so engaged and that his or her service, training, or education has been terminated.

Section 70. Inactive licenses. Any Asian bodywork therapist who notifies the Department in writing on forms prescribed by the Department may elect to place his or her license on inactive status and shall, subject to rules of the Department, be excused from payment of renewal fees until he or she notifies the Department in writing of his or her desire to resume active status.

An Asian bodywork therapist requesting restoration from inactive status shall be required to pay the current renewal fee and shall be required to restore his or her license as provided in Section 65 of this Act.

Any Asian bodywork therapist whose license is on inactive status shall not practice Asian bodywork therapy in the State, and any practice conducted shall be deemed unlicensed practice.

Section 75. Fees. The fees assessed under this Act shall be set by rule.

Section 80. Deposit of fees and fines; appropriations. All fees and fines collected under this Act shall be deposited into the General Professions Dedicated Fund. All moneys in the Fund shall be used by the Department of Financial and Professional Regulation, as appropriated, for the ordinary and contingent expenses of the Department.

Section 85. Violations; injunction; cease and desist order.

(a) If any person violates a provision of this Act, the Secretary may, in the name of the People of the State of Illinois, through the Attorney General of the State of Illinois or the State's Attorney in the county where the offense occurs, petition for an order enjoining the violation or for an order enforcing compliance with this Act. Upon the filing of a verified petition in court, the court may issue a temporary restraining order, without notice or bond, and may preliminarily and permanently enjoin the violation. If it is established that the person has violated or is violating the injunction, the court may punish the offender for contempt of court. Proceedings under this Section shall be in addition to, and not in lieu of, all other remedies and penalties provided by this Act.

(b) If, after January 1, 2012, any person practices as an Asian bodywork therapist or holds himself or herself out as a Asian bodywork therapist without being licensed under the provisions of this Act, then the Secretary, any licensed Asian bodywork therapist, any interested party, or any person injured thereby may petition for relief as provided in subsection (a) of this Section or may apply to the circuit court of the county where the violation or some part thereof occurred, or where the person complained of has his or her principal place of business or resides, to prevent the violation. The court has jurisdiction to enforce obedience by injunction or by other process restricting the person complained of from further violation and enjoining upon him or her obedience.

(c) Whenever, in the opinion of the Department, a person violates any provision of this Act, the Department may issue a rule to show cause why an order to cease and desist should not be entered against him or her. The rule shall clearly set forth the grounds relied upon by the Department and shall provide a period of 7 days from the date of the rule to file an answer to the satisfaction of the Department. Failure to answer to the satisfaction of the Department shall cause an order to cease and desist to be issued immediately.

Section 90. Investigations; notice and hearing. The Department may investigate the actions of any applicant or of any person holding or claiming to hold a license. The Department shall, before refusing to issue or renew a license or to discipline a licensee under Section 45, notify the applicant or holder of a license in writing, at least 30 days prior to the date set for the hearing, of the nature of the charges and that a hearing will be held on the date designated. The notice shall direct the applicant or licensee to file a written answer to the Board under oath within 20 days after the service of the notice, and shall inform the applicant or licensee that failure to file an answer will result in a default judgment being entered against the applicant or licensee. A default judgment may result in the license being suspended, revoked, or placed on probationary status, or other disciplinary action may be taken, including limiting the scope, nature, or extent of practice, as the Secretary may deem proper. Written notice may be served by personal delivery or certified or registered mail to the respondent at the address of his or her last notification to the Department. In case the person fails to file an answer after receiving notice, his or her license or certificate may, in the discretion of the Department, be suspended, revoked, or placed on probationary status and the Department may take whatever disciplinary action it deems proper, including limiting the scope, nature, or extent of the person's practice or the imposition of a fine, without a hearing, if the act or acts charged constitute sufficient grounds for that action under this Act. At the time and place fixed in the notice, the Board shall proceed to hear the charges and the parties or their counsel shall be accorded ample opportunity to present statements, testimony, evidence, and argument that may be pertinent to the charges or to the licensee's defense. The Board may continue a hearing from time to time.

Section 95. Stenographer; transcript. The Department, at its expense, shall preserve a record of all proceedings at the formal hearing of any case involving the refusal to issue or renew a license or the discipline of a licensee. The notice of hearing, complaint, and all other documents in the nature of pleadings and written motions filed in the proceedings, the transcript of testimony, the report of the Board, and the order of the Department shall be the record of the proceeding.

Section 100. Compelling testimony. Any circuit court, upon application of the Department or its designee or of the applicant or licensee against whom proceedings under Section 90 of this Act are pending, may enter an order requiring the attendance of witnesses and their testimony and the production of documents, papers, files, books, and records in connection with any hearing or investigation. The court may compel obedience to its order by proceedings for contempt.

Section 105. Findings and recommendations. At the conclusion of the hearing, the Board shall present to the Secretary a written report of its findings and recommendations. The report shall contain a finding of whether or not the accused person violated this Act or failed to comply with the conditions required in this Act. The Board shall specify the nature of the violation or failure to comply and shall make its recommendations to the Secretary.

The report of findings and recommendations of the Board shall be the basis for the Department's order or refusal or for the granting of a license unless the Secretary shall determine that the Board's report is contrary to the manifest weight of the evidence, in which case the Secretary may issue an order in contravention of the Board's report. The finding is not admissible in evidence against the person in a criminal prosecution brought for the violation of this Act, but the hearing and finding are not a bar to a criminal prosecution brought for the violation of this Act.

Section 110. Rehearing. In any case involving the refusal to issue or renew a license or discipline of a licensee, a copy of the Board's report shall be served upon the respondent by the Department, either personally or as provided in this Act for the service of the notice of hearing. Within 20 days after service, the respondent may present to the Department a motion, in writing and specifying particular grounds, for a rehearing. If no motion for rehearing is filed, then upon the expiration of the time specified for filing the motion, or if a motion for rehearing is denied, then upon the denial, the Secretary may enter an order in accordance with recommendations of the Board, except as provided in Section 105 of this Act. If the respondent shall order from the reporting service and pay for a transcript of the record within the time for filing a motion for rehearing, the 20-day period within which the motion may be filed shall commence upon the delivery of the transcript to the respondent.

Section 115. Rehearing. Whenever the Secretary is satisfied that substantial justice has not been done in the revocation, suspension, or refusal to issue or renew a license, the Secretary may order a rehearing by the same or other examiners.

Section 120. Appointment of a hearing officer. The Secretary shall have the authority to appoint any attorney duly licensed to practice law in this State to serve as the hearing officer in any action for refusal to issue or renew a license or permit or for the discipline of a licensee. The hearing officer shall have full authority to conduct the hearing. At least one member of the Board shall attend each hearing. The hearing officer shall report his or her findings and recommendations to the Board and the Secretary. The Board shall have 60 days after receipt of the report to review the report of the hearing officer and present its findings of fact, conclusions of law, and recommendations to the Secretary. If the Board fails to present its report within the 60-day period, the Secretary shall issue an order based on the report of the hearing officer. If the Secretary determines that the Board's report is contrary to the manifest weight of the evidence, he or she may issue an order in contravention of the Board's report.

Section 125. Order or certified copy; prima facie proof. An order or a certified copy thereof, over the seal of the Department and purporting to be signed by the Secretary, shall be prima facie proof that:

(1) the signature is the genuine signature of the Secretary;

(2) the Secretary is duly appointed and qualified; and

(3) the Board and the members of the Board are qualified to act.

Section 130. Restoration of suspended or revoked license. At any time after the suspension or revocation of a license, the Department may restore it to the accused person upon the written recommendation of the Board, unless after an investigation and a hearing, the Board determines that restoration is not in the public interest.

Section 145. Surrender of license. Upon the revocation or suspension of any license, the licensee shall surrender the license to the Department and, if the licensee fails to do so, the Department shall have the right to seize the license.

Section 150. Temporary suspension of a license. The Secretary may temporarily suspend the license of an Asian bodywork therapist without a hearing, simultaneously with the institution of proceedings for a hearing provided for in Section 95 of this Act, if the Secretary finds that the evidence in his or her possession indicates that continuation in practice would constitute an imminent danger to the public. In the event that the Secretary temporarily suspends the license of an Asian bodywork therapist without a hearing, a hearing by the Board must be held within 30 calendar days after the suspension has occurred.

Section 155. Administrative review; venue. All final administrative decisions of the Department are subject to judicial review under the Administrative Review Law and its rules. The term "administrative decision" is defined as in Section 3-101 of the Code of Civil Procedure.

Proceedings for judicial review shall be commenced in the circuit court of the county that the party applying for relief resides; but if the party is not a resident of this State, the venue shall be in Sangamon County.

The Department shall not be required to certify any record to the court or file any answer in court or otherwise appear in any court in a judicial review proceeding, unless there is filed in the court, with the complaint, a receipt from the Department acknowledging payment of the costs of furnishing and certifying the record. Failure on the part of the plaintiff to file a receipt in court shall be grounds for dismissal of the action.

Section 160. Violations. A person who is found to have violated any provision of this Act is guilty of a Class A misdemeanor for the first offense and a Class 4 felony for the second and any subsequent offense.

Section 165. Returned checks; fines. Any person who delivers a check or other payment to the Department that is returned to the Department unpaid by the financial institution upon which it is drawn shall pay to the Department, in addition to the amount already owed to the Department, a fine of $50. The fines imposed by this Section are in addition to any other discipline provided under this Act for unlicensed practice or practice on a nonrenewed license. The Department shall notify the person that payment of fees and fines shall be paid to the Department by certified check or money order within 30 calendar days after the notification. If, after the expiration of 30 days after the date of the notification, the person has failed to submit the necessary remittance, the Department shall automatically terminate the license or deny the application, without hearing. If, after termination or denial, the person seeks a license, he or she shall apply to the Department for restoration or issuance of the license and pay all fees and fines due to the Department. The Department may establish a fee for the processing of an application for restoration of a license to pay all expenses of processing this application. The Secretary may waive the fines due under this Section in individual cases where the Secretary finds that the fines would be unreasonable or unnecessarily burdensome.

Section 170. Unlicensed practice; violation; civil penalty.

(a) Any person who practices, offers to practice, attempts to practice, or holds himself or herself out to practice Asian bodywork therapy or as an Asian bodywork therapist without being licensed under this Act shall, in addition to any other penalty provided by law, pay a civil penalty to the Department in an amount not to exceed $5,000 for each offense as determined by the Department. The civil penalty shall be assessed by the Department after a hearing is held in accordance with the provisions set forth in this Act regarding the provision of a hearing for the discipline of a licensee.

(b) The Department has the authority and power to investigate any unlicensed activity.

(c) The civil penalty shall be paid within 60 days after the effective date of the order imposing the civil penalty. The order shall constitute a judgment and may be filed and execution had thereon in the same manner as any judgment from any court of record.

Section 175. Home rule. Beginning January 1, 2012, the regulation and licensing of Asian bodywork therapy is an exclusive power and function of the State. Beginning January 1, 2012, a home rule unit may not regulate or license Asian bodywork therapists or Asian bodywork therapy establishments. This Section is a denial and limitation of home rule powers and functions under subsection (h) of Section 6 of Article VII of the Illinois Constitution.

Section 180. Administrative Procedure Act. The Illinois Administrative Procedure Act is hereby expressly adopted and incorporated herein as if all of the provisions of that Act were included in this Act, except that the provision of subsection (d) of Section 10-65 of the Illinois Administrative Procedure Act that provides that at hearings the licensee has the right to show compliance with all lawful requirements for retention, continuation, or renewal of the license is specifically excluded. For the purposes of this Act the notice required under Section 10-25 of the Administrative Procedure Act is deemed sufficient when mailed to the last known address of a party.

Section 185. Severability. The provisions of this Act are severable under Section 1.31 of the Statute on Statutes.

Section 190. The Massage Licensing Act is amended by changing Section 25 as follows:

(225 ILCS 57/25)

(Section scheduled to be repealed on January 1, 2012)

Sec. 25. Exemptions.

(a) This Act does not prohibit a person licensed under any other Act in this State from engaging in the practice for which he or she is licensed.

(b) Persons exempted under this Section include, but are not limited to, physicians, podiatrists, naprapaths, and physical therapists.

(c) Nothing in this Act prohibits qualified members of other professional groups, including but not limited to nurses, occupational therapists, cosmetologists, and estheticians, from performing massage in a manner consistent with their training and the code of ethics of their respective professions.

(d) Nothing in this Act prohibits a student of an approved massage school or program from performing massage, provided that the student does not hold himself or herself out as a licensed massage therapist and does not charge a fee for massage therapy services.

(e) Nothing in this Act prohibits practitioners that do not involve intentional soft tissue manipulation, including but not limited to Alexander Technique, Feldenkrais, Reike, and Therapeutic Touch, from practicing.

(f) Practitioners of certain service marked bodywork approaches that do involve intentional soft tissue manipulation, including but not limited to Rolfing, Trager Approach, Polarity Therapy, and Orthobionomy, are exempt from this Act if they are approved by their governing body based on a minimum level of training, demonstration of competency, and adherence to ethical standards.

(g) Until January 1, 2012, practitioners Practitioners of Asian bodywork approaches are exempt from this Act if they are members of the American Organization of Bodywork Therapies of Asia as certified practitioners or if they are approved by an Asian bodywork organization based on a minimum level of training, demonstration of competency, and adherence to ethical standards set by their governing body.

On and after January 1, 2012, practitioners of Asian bodywork approaches are exempt from this Act if they are licensed under the Asian Bodywork Therapy Licensing Act.

(h) Practitioners of other forms of bodywork who restrict manipulation of soft tissue to the feet, hands, and ears, and who do not have the client disrobe, such as reflexology, are exempt from this Act.

(i) Nothing in this Act applies to massage therapists from other states or countries when providing educational programs or services for a period not exceeding 30 days within a calendar year.

(j) Nothing in this Act prohibits a person from treating ailments by spiritual means through prayer alone in accordance with the tenets and practices of a recognized church or religious denomination.

(k) Nothing in this Act applies to persons or entities practicing the specified occupations set forth in subsection (a) of, and pursuant to a licensing exemption granted in subsection (b) or (d) of, Section 2105-350 of the Department of Professional Regulation Law of the Civil Administrative Code of Illinois, but only for so long as the 2016 Olympic and Paralympic Games Professional Licensure Exemption Law is operable.

(Source: P.A. 96-7, eff. 4-3-09.)