The Montana legislative session is set to start soon. The Governor wants to cut red tape, so the Department of Labor & Industry is taking a hacksaw to the licensing statutes. They have released 3 proposals so far and are taking feedback on all of them. The Department is also running a series of listening sessions to gather feedback.

To read the Proposals, submit written feedback, participate in the listening sessions, and find out more about them go to https://boards.bsd.dli.mt.gov/educational-sessions. The proposals are at the bottom of the page under the “Drafts” tab. Other tabs provide other info or allow you to leave feedback. If you have specific formatting to your comments, you can send them in via email: dlibsdcomms@mt.gov

The BLMTB Board’s analysis for each of the bills can be found here: https://www.dropbox.com/s/l9w8tf3kp5ekm2u/Analysis%20of%20Department%20Bills.pdf?dl=0

It’s a long document because we break down all three proposed bills for you. But, the letter below is what we’ll be sending the Department that summarizes the BLMTB Board’s concerns.

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Dear Mr. Cook / Department of Labor and Industry,

We are writing concerning the red tape initiative and the proposed bills pertaining to professions and occupations.

The BLMTB is a massage therapy advocacy group that represents the interests of our constituents. We appreciate the Governor’s desire to slash the red tape and remove barriers to work. For the most part, the BLMTB board of directors agrees with the changes proposed. However, we do have some concerns and some proposed changes, listed in order of importance.

1. Enforcement, Conflict between Section 3 and Section 5
The Problem: Section 5 Repeals MCA 37-33-501, while Section 3 amends the same section.
Solution:
Strike 37-33-501 from Section 5, the repealer.

Rationale:
* 37-33-501 (2) spells out what titles are protected under the massage therapy practice act and this section must be retained.
* 37-33-501 (1) requires a license to practice and must be retained if the proposed Title-27-Reform Section 134 changes are not enacted.

2. Title-37-Reform, Page 363, Section 214 Repealer section
Proposed change:
Strike 37-33-405 (powers and duties of the board) from the repealer section and
Add a new section to Amend  37-33-405 to only keep subsection (3) which should be adopted to read:
(3) (1) adopt rules establishing reasonable requirements for continuing education, which must require 12 hours of continuing education to be completed in each every 2-years period; which may include carryover of hours from one reporting period to the next.

Rationale: The BLMTB strenuously opposes leaving the number of CEs required up to the board. This provision was put in the law specifically to prevent a rogue board from imposing additional red tape on licensees. We also propose an amendment to make it easier for licensees to meet the requirement by allowing a carryover of CEs as this has been a major complaint by licensees trying to meet the CE requirements.

3. Board-Consistency, Page 8, New Section 3. Appointment – Qualifications – Terms
Proposed change:
Amend Section 3 (6) to read:  A board member may not have with a financial interest in the provision of continuing education to any licensee if that continuing education is required by statute or rule, must recuse themselves from board decisions related to continuing education.

Rationale: The BLMTB Board agrees that association board members should not sit on any state board. However, decisions concerning continuing education do not come up that often and should not prevent a CE provider from sitting on the board.

4. Board-Consistency, Page 52, Section 36
Proposed change:
Amend (2)(a) to Partially restore (2)(a) to read:
(a) one public member WHO IS NOT A MEDICAL PRACTITIONER
AND
Amend (2)(c) to Partially restore (2)(c) to read:
(c) three massage therapists, none of whom may be an owner of a school that educates massage therapists, who have been actively engaged in the practice of massage therapy for at least 3 years prior to being appointed to the board. None of the three massage therapists may belong to the same national professional association. [delete the remainder of the subsection].

Rationale: The original language concerning board membership was carefully considered when the bill was written in 2009. Per the change in (a), the board did not want membership weighted with 2 medical providers, which is what could happen if the provision is not changed.
And (c) should be restored because
* Board members should have experience in the field to know what’s going on in the profession and
* No national membership organization should hold a majority of practitioner seats on the board. Massage therapists in Montana have a long history of problems with this and we decided that a distribution of membership would better serve the licensees than one organization holding a monopoly on board seats.

5. Title-37-Reform, Page 7, New Section 1 (6)
Proposed change:
Amend New Section 1 (6) to read:
The boards and programs …[keep existing language] … however, this subsection does not prohibit a municipality or other political subdivision of the state from imposing a general business license fee or general business license tax on an establishment as a condition to conduct business in the municipality’s or other political subdivision’s jurisdiction provided that the offices of one profession providing healthcare services to the public is treated no differently than other professions providing healthcare services.

Rationale: We are deeply concerned that Section 1(6) allows local jurisdictions to discriminate against businesses like massage therapy. No single profession that provides healthcare services should be treated differently than any other healthcare business. We chose this particular language because elsewhere in statute, healthcare professions are defined in a way that excludes professions, like massage therapy, that provide healthcare services to the public.

6. Enforcement, Page 3, Section 1 (4)
Proposed change:
Amend New Section 1 (4) to read:
Any owner, officer, director, agent, partner, manager, supervisor, or member of a business entity, or other person in charge of the operation of a business entity who knowingly and personally participates in a violation of this section is subject to the penalties prescribed by this section.

Rationale: We support this provision as it can be an anti-human trafficking proposal intended to punish those who own or operate the business, particularly when it comes to unlicensed practice. What the current proposal does not do is clarify that the owner or manager of the business is also responsible. Often the owner of the business resides out of state and beyond the reach of Montana law, thus the addition of the manager/supervisor also being held accountable. Our suggested language does just that. None of the terms in your proposal are defined in chapter 1, so we added more terms to clarify.

7. Enforcement, Page 2, Section 1. Cease and desist – injunction – criminal penalties
Concern: The BLMTB board supports all of the provisions in section 1 as it pertains to unlicensed practice and in emergency situations where the public is in extreme danger. However, for other violations the term “credible evidence” is vague and would be an overreach without participation of both the screening and adjudication panels as is mandated through the current complaint process.

8. Board-Consistency, Page 9, Section 4(1)
Proposed change:
Amend Section 4(1) to read:
The board shall… [retain proposed text] … The chair may establish board committees to further board business and designate board members and other people as committee members.

Rationale: It’s not clear whether the chair can appoint non-board members to sit on committees. We suggest adding this language to clarify that a chair can appoint anyone they want to the committee.

9. Title-37-Reform, Page 25, Section 12 (3)
Proposed change:
Strike Section 12 (3)

Rationale: It expands the law to force licensees to report other licensees for any violation, rather than provide the licensee with the ability to address the issue discretely and without getting the board involved. Prior to this, licensees were only required to report unlicensed practice. In short, this tattletale rule will put a damper on massage therapists getting involved in their community.

10. Title 37-Reform, Page 55, Section 25 (2)(a) – (change is in all caps)
Proposed change:
Amend Section 25 (2)(a) to read:
(a) The department may determine a percentage of up to 25% to randomly audit after the renewal date, each applicable license type for continuing education compliance. If the audit results in more than a 15% noncompliance rate OF THE LICENSEES AUDITED before the department administers the provisions of 37-1-321,…

Rationale: The current proposed language is unclear: Do you mean 15% of the total licensees or 15% of those audited? We think this needs to be clarified.

11. Title-37-Reform, Page 32, Section 16, Title and subsection (1)
Concern: The change to MCA 37-1-131 strikes the quorum requirement.
This is a concern because if the Board-Consistency proposal New Section 4 (3) is not enacted, you will no longer have a quorum requirement.

Thank you for the opportunity to comment.

BLMTB Signature line.

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Thanks for reading and if you have other concerns with these proposals, let us know!

Your BLMTB Board of Directors
Patty Brusati, Deb Kimmet, and Susan Carlson