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Amid contract dispute, state board stops licensing functions

The state board that oversees massage therapists in Alabama is not issuing occupational licenses or taking phone calls after state leaders didn’t approve agreements for its contracted executive director.

“Due to the expiration of the contract to provide administrative services, the staff will be unable to process license renewals, answer telephone calls and emails,” a message on the state Board of Massage Therapy’s website said Tuesday. “Services will resume once the pending contract is approved.”

The service shutdown is the latest development in an occupational licensing oversight crackdown and calls for reform in Montgomery this year. It’s also the result of recent changes in how state agencies’ emergency contracts with vendors are approved.

“We should never be in the position where functions of state government are turned off because a third-party contractor didn’t get what he wants,” Sen. Chris Elliott, R-Josephine, told Alabama Daily News Tuesday.

The board licenses about 3,200 massage therapists, businesses, instructors and schools and collected $262,565 in fees in 2022.

And if massage therapists can see their governing body stop functioning, so could electricians or plumbers or a plethora of other professionals, Elliott said.

How they got here

Occupational licensing isn’t the sexiest topic, but it’s important because dozens of boards regulate and collect money from thousands of professional workers in the state. How those appointed boards operate, including being able to hire private executive managers to handle much of their day-to-day functions, has come under fire this year as lawmakers question operations and expenses at some bodies. The boards are funded through fees they collect from licensees. Those funds are supposed to be set by state statute, though some boards have been caught this year collecting fees outside their authority.

A recent audit by the Alabama Department of Examiners of Public Accounts, which regularly audits all state government agencies, found 13 issues with the massage board, including Executive Director Keith Warren being paid his monthly fee before services were provided, noncompliance with open meeting rules, waiting two months before notifying the Secretary of State of a board member resignation, and issuing a license to someone who hadn’t met requirements.

In September, the Legislative Sunset Committee, a panel of lawmakers that extends the authority of occupational boards, made the rare decision to end the massage board’s authority at the end of fiscal 2024. It will likely be dissolved and reformed — a legislative restart. 

But until then, the board is supposed to function. And it needs a manager.

Most recently

The board’s contract with Warren expired at the end of September. He’s had an emergency contract for the past year.

The Legislative Contract Review Committee oversees state agencies’ outside contracts and has monthly public meetings. The board’s proposed contract was on the committee’s October agenda but wasn’t advanced because no one from the board attended the meeting to answer questions about it. 

At the Nov. 2 meeting, some committee members questioned increased payments for Warren in the new, one-year, $150,000 contract, especially given the troublesome audit and sunset decision. The contract review committee can’t terminate a proposed contract, but can and did delay it 45 days. That means the board and Warren could have a deal in mid-December.

Not an emergency

The board this month attempted to get an emergency contract, usually reserved for situations where an agency doesn’t have time to go through the normal contract bidding process, from the Alabama Department of Finance’s procurement officer. 

In the past, operating under emergency contracts has been common practice for many boards and state agencies. Not anymore. A law change that went into effect late last year gives the procurement officer more discretion in denying contracts.

“After careful consideration, this request was denied by the chief procurement officer who found that the board had had sufficient time to enter into a contract for these services through the statutory competitive procurement process,” a statement from Finance to ADN Tuesday said.

State Sen. Arthur Orr, R-Decatur, sponsored that law change.

“A board’s poor planning does not create an emergency and emergency contracts should be reserved for true emergencies,” Orr said Tuesday. “Emergency contracts shouldn’t be used to get around the contract review process.” 

About the pause on licensing services, contract review committee chairman Sen. Dan Roberts, R-Mountain Brook, said it is unfortunate for massage therapists.

“It seems totally inappropriate to do that; this feels like a leverage point,” Roberts told ADN Tuesday.

Warren and his Smith Warren Company manage 15 boards. In exchange, it was paid about $1.6 million in 2022. On Tuesday, he told ADN he’s reviewing the legalities of continuing his services to the board without a contract.

“It is obvious that the same few wanting to reorganize the board do not even want the board to function until Oct. 1, 2024,” Warren said. “So, the directions on the website, email replies and voicemails state we will provide limited administrative duties until the contract issue is resolved.”

Elliott is proposing legislation to streamline many of the boards’ functions under one state office. A similar suggestion was made to Gov. Kay Ivey last week by a government efficiency study group.

“I continue to discuss this matter with licensed massage therapists throughout the state and their displeasure in all of this caused by a select few however, this is for the board and the licensed massage therapist to work with their legislators to resolve,” Warren said.

Meanwhile, the board and their responsibilities remain, Sen. Will Barfoot, R-Pike Road, said Tuesday. He’s a co-chair of the sunset committee. 

If a head college football coach leaves his contract, the university still has a football team and games to play, Barfoot said.

“It’s the responsibility of that board to continue to do what their legal obligations are,” Barfoot says.

Board Chair Denise Dale, a massage therapist in north Alabama, asked what needs to happen before licensure issuance can be resumed. 

“We’re waiting, that’s all I know right now,” she said.

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