Bill S.3036

SENATE . . . . . . . . . . . . . . No. 3036

The Commonwealth of Massachusetts

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In the One Hundred and Ninety-Second General Court
(2021-2022)

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by inserting after section 163 the following section:-

SECTION 1. Chapter 180 of the General Laws is hereby amended by striking out section 4A, as appearing in the 2012 Official Edition, and inserting in place thereof the following section:-

Section 4A. (a) As used in this chapter, credit counseling services shall mean: (1) the providing of financial and budgetary advice and judgment to individuals for compensation or gain in connection with the creation of a budgetary plan; (2) the creation of a plan whereby an individual turns over an agreed amount of his income to a nonprofit credit counseling corporation which distributes it to the creditors of that individual in accordance with a plan which they have approved and which may provide for smaller payments or a longer term than the original contract; (3) the providing of educational services relating to the use of credit; or (4) any combination of clauses (1), (2) or (3).

(b) No person, other than an attorney or a nonprofit charitable corporation organized under the provisions of this chapter may render credit counseling services, as specified in clause (2) of subsection (a).

(c) Any corporation formed for credit counseling purposes which provides debt management services for compensation or gain from or on behalf of the individuals to whom it provides the services or from their creditors shall obtain a license under chapter 255G. Each such corporation shall comply with the provisions of section 8F of chapter 12. No such corporation shall engage in the practice of law. If a person receiving credit counseling services requires legal advice or counsel, they shall be referred to an attorney of their choice, the local bar association referral service, or a local legal aid program.

SECTION 2. The General Laws are hereby amended by inserting after chapter 255F the following chapter:-

CHAPTER 255G

DEBT MANAGEMENT SERVICES

Section 1. As used in this chapter, the following words shall have the following meanings, unless the context requires otherwise:

Agreement, a contract between a provider and an individual for the performance of debt management services.

Business address, the physical location of a business, including the name and number of a street.

Business day, a calendar day, except for Sundays and legal holidays as listed in the first sentence of clause eighteenth of section 4 of chapter 4.

Commissioner, the commissioner of banks.

Consumer, an individual who has secured or unsecured debt, which arises out of personal, family or household obligations, and who has executed an agreement with a provider.

Creditor, a person that has extended credit to an individual.

Debt management services, directly or indirectly receiving an individuals money to distribute it to 1 or more of an individuals creditors in partial or full satisfaction of the individuals secured or unsecured debts; arranging the distribution or assisting an individual in the distribution of an individuals money to 1 or more of an individuals creditors in partial or full satisfaction of the individuals secured or unsecured debts; or acting or offering to act as an intermediary between an individual and 1 or more of the individuals creditors to reduce, defer, discharge or in any other way modify the terms and conditions of an individuals obligation to repay secured or unsecured debts.

Division, the division of banks.

Individual, a natural person.

Licensee, a provider that possesses a valid license issued pursuant to section 2.

Person, an individual, corporation, association, operation, firm, partnership, trust or other form of business association.

Provider, a person that performs debt management services for compensation or gain, or in the expectation of compensation or gain.

Statement of accounting, a written or electronic document that a provider prepares for a consumer in accordance with section 16.

Third party payment processor, an entity that holds, or has access to, or can effectuate procession of, by any means, the monies of a consumer, or distributes, or is in the chain of distribution of such monies, to the creditors of such consumer, pursuant to an agreement or contract with either the consumer or the licensee.

Trust Account, an account held by a provider that is: established by the provider in a financial institution described in Section 3(4) of this chapter; separate from other accounts of the provider or its designee; designated as a trust or other account such that it is clear that the money in the trust account is not the money of the provider or its designee; and used to hold money of one or more consumers for disbursement to the creditors of the consumers, in each case pursuant to a debt management plan whereby consumers’ funds are distributed, pro rata, on a periodic basis to the consumers’ creditors. An account established by a consumer that is both owned and controlled by the consumer shall not be deemed to be a “trust account” for purposes of this chapter.

Section 2. (a) No person shall engage in or advertise for debt management services in the commonwealth unless such person has first obtained a debt management services license from the commissioner.

(b) A provider shall obtain a license for its primary business address and for each of its business addresses in the commonwealth.

(d) A licensee shall file a surety bond in an amount and form that the commissioner determines before it may conduct business in the commonwealth.

(e) A licensee shall not conduct business in the commonwealth under a business name other than the business name that is listed on its license. Notwithstanding the foregoing, a provider may do business under a fictitious business name, provided that the provider has registered such fictitious business name(s) with the Secretary of State and provided evidence of such registration to the commissioner.

(f) The commissioner shall promulgate rules and regulations for the administration and enforcement of this chapter.

Section 3. The following persons shall be exempt from this chapter:

(1) a providers employees who perform debt management services on the providers behalf in the regular course of their employment;

(2) a person organized under section 501(c) of the Internal Revenue Code that receives no compensation or gain for the debt management services from or on behalf of the individuals to whom it provides the services or from their creditors;

(3) judicial officers, individuals acting under the direction of a court, or assignees for creditors benefit;

(4) a bank as defined in section 1 of chapter 167, a national banking association, a federally chartered credit union, a federal savings and loan association, a federal savings bank, or any subsidiary of the above, or any bank, trust company, savings bank, savings and loan association, or credit union organized under the laws of any other state, or any subsidiary of the above;

(5) attorneys licensed to practice law in the commonwealth who provide debt management services to consumers with whom the attorney also provides legal services within an attorney-client relationship to, and who do not solicit debt management services business;

(6) persons that provide bill paying services if such persons do not perform debt management service;

(7) creditors or the creditors employees who negotiate debt settlement with individuals or providers, acting on an individuals or consumers behalf;

(8) officers or employees of the United States or a state of the United States who perform debt management services for individuals on behalf of the federal government, the commonwealth, a municipality or a state agency, and receive compensation solely from such governmental entities;

(9) certified public accountants licensed in the commonwealth who provide debt management services to consumers with whom the certified public accountant also provides accounting services within an accountant-client relationship to, and who do not solicit debt management services business; and

(10) a third party payment processor which does not otherwise provide debt management services.

Section 4. (a) The application for the license and the application for the license renewal shall be in a form prescribed by the commissioner, signed under oath and containing information as the commissioner shall determine. Applicants shall pay an investigation fee that the secretary of administration and finance shall determine under section 3B of chapter 7. The commissioner shall evaluate the applicants financial responsibility, character, reputation, integrity and general fitness to determine whether the applicant will act lawfully, honestly, fairly, soundly and efficiently in the public interest. The license shall be for a period of 1 year. The secretary of administration and finance shall determine the license fee annually under section 3B of chapter 7. The following items shall be required in any application for a license under this Chapter:

(1) proof of compliance with Section 15.01 et seq. of title XXII, chapter 156D, which specifies the requirements for an entity to do business in the commonwealth.

(2) the applicant's name, principal business address and telephone number, all business addresses in this state, all electronic mail addresses for the business and all internet web site addresses to be used for the business;

(3) the name and home address of each officer and director of the applicant and each person that owns, directly or indirectly, more than fifteen percent of the voting interests of the applicant;

(4) a statement describing, to the extent it is known or should be known by the applicant, any material civil or criminal judgment relating to financial fraud or misuse and any material administrative or enforcement action relating to financial fraud or misuse by a governmental agency in any jurisdiction against the applicant, any of its officers, directors, owners, or agents; and

(5) a copy of each form of agreement and the schedule of fees and charges that the applicant will use with individuals who reside in the commonwealth.

(b) The commissioner may participate in a multi-state licensing system for the sharing of regulatory information and for the licensing and application, by electronic or other means, of entities engaged in the business of debt management services. The commissioner may establish requirements for participation by an applicant in a multi-state licensing system which may vary from the provisions set out in this section and section 2. The commissioner may require a background investigation of each applicant for a license to engage in debt management services by means of fingerprint and state and national criminal history record checks by the department of criminal justice information services pursuant to section 172 of chapter 6 and the Federal Bureau of Investigation. If the applicant is a partnership, association, corporation or other form of business organization, the commissioner may require such background investigation by means of fingerprint checks on each member, director, principal officer of such applicant, and any individual acting as a manager of an office location. The applicant shall pay directly to such multi-state licensing system any additional fee relating to participation in such multi-state licensing system.

Section 5. (a) The commissioner may deny a license if:

(1) the applicant does not satisfy the criteria set forth in subsection (c) of section 4.

(2) the application contains information that is materially erroneous or incomplete;

(3) the applicant fails to provide information that the commissioner may request, in a timely manner;

(4) an officer, director, member or principal of the applicants business has been (i) convicted of or pled nolo contendere to a felony, or (ii) committed an act involving fraud, deceit or dishonesty;

(5) an officer, director, member or principal of the applicant has had a professional license revoked, suspended or subjected to administrative action in any jurisdiction;

(6) the applicant or any of its an officers, directors, members or principals has defaulted in the payment of money collected for others; or

(7) the applicants license was revoked or suspended in another jurisdiction and has not been reinstated.

(b) On or before the 20th day after a license application denial, the commissioner shall enter upon the records a written decision and findings containing the reasons supporting a license denial, and shall send a notice to the applicant via certified mail. On or before the 30th day after the date of the notice, the applicant may appeal the denial to the superior court for Suffolk County, sitting in equity.

Section 6. (a) The commissioner may suspend, revoke or deny renewal of a license if:

(1) a licensee has violated this chapter or any rule or regulation adopted hereunder or any other law applicable to the conduct of its business;

(2) a fact or condition exists that, if it had existed when the licensee applied for a license, would have warranted the commissioner refusing to issue the initial license;

(3) the licensee does not satisfy the criteria required under subsection (c) of section 4;

(4) the licensee has refused to permit the commissioner to examine the licensees books and records under this chapter, failed to comply with section 13 or made a material misrepresentation or omission in complying with section 13; or

(5) the licensee has not responded within a reasonable time and in an appropriate manner to the commissioners communications.

(b) If the commissioner suspends, revokes, or denies renewal of a license, the commissioner may seek a court order to seize the licensees books, records, accounts, property or money in a trust account maintained by the provider.

(c) Except as provided in section 7, a licensee shall receive notice and a hearing under chapter 30A before the commissioner revokes or suspends a license.

(d) A licensee may deliver a written notice to the commissioner to surrender its license, provided, however, that if a licensee surrenders its license, its civil or criminal liability for acts committed before the surrender is not affected.

Section 7. (a) If the commissioner determines, after giving notice of and opportunity for a hearing, that a licensee has acted in a manner that has violated or would violate this chapter, or a rule, regulation or order hereunder, the commissioner may order the licensee to cease and desist from unlawful acts or practices and take affirmative action to enforce this chapter.

(b) If the commissioner finds that a delay in issuing an order under subsection (a) will irreparably harm the public interest, the commissioner may issue a temporary cease and desist order. Upon the entry of a temporary cease and desist order, the commissioner shall promptly notify the affected licensee in writing that the order has been entered, the reasons for the order and that on or before the 20th day after the receipt of a written request from the licensee, the matter will be scheduled for hearing to determine whether or not such temporary order shall become permanent. If the commissioner does not order a hearing and a licensee does not request a hearing, the order shall remain in effect until the commissioner modifies or vacates it. If a hearing is requested or ordered, the commissioner shall vacate, modify or make the order permanent, by written findings of fact and conclusions of law, after giving the licensee subject to the order notice of and opportunity for a hearing.

(c) The commissioner shall not issue an order under this section, except an order issued pursuant to subsection (b), without prior notice of and opportunity for a hearing. The commissioner may vacate or modify an order under this section upon finding that the conditions that required the order have changed and that it is in the public interest to vacate or modify the order.

(d) Any order issued pursuant to this section shall be subject to review as provided in chapter 30A

Section 8. (a) The commissioner may examine the books and records of a licensee and have full access to the records related to its business. A licensee shall keep and use its business records in a form, at a location and for a retention period as the commissioner shall promulgate in a regulation, which shall enable the commissioner to determine whether the licensee is complying with this chapter and the rules and regulations promulgated hereunder, and any other law, rule or regulation applicable to its business.

(b) In connection with the examination, the commissioner may:

(1) oblige a licensee to pay expenses on or before the thirtieth day after the licensee receives an invoice, which the division incurs in conducting an examination, including expenses for travel outside the commonwealth;

(2) require or permit a licensee to file a statement under oath as to the facts and circumstances of a matter to aid in an examination; and

(3) seek a court order to seize the following items from the federally insured bank that a licensee maintains its trust account at: money, books, records, accounts and other property that the licensee keeps under the control of the federally insured bank.

(c) The commissioner shall preserve a full record of a licensees examination, including a statement of its condition. Examination records and reports, including work papers, information derived from reports or in response to reports and any copies thereof in a licensees possession shall be confidential and privileged communications, shall not be subject to subpoena and shall not be a public record under clause 26 of section 7 of chapter 4. For the purpose of this paragraph, examination records and reports shall include examination records and reports that any bank regulatory agency of a state, federal or foreign government conducted, which that agency or government considers confidential, and which are in possession of the commissioner. In any proceeding before a court, the court may issue a protective order to seal the record protecting the confidentiality of a record, other than a record on file with the court or filed in connection with the court proceeding, and the court may exclude the public from any portion of a proceeding at which a record may be disclosed. The commissioner shall distribute copies of examination reports to a licensee for its use only and the licensee shall not publish these reports to any person or agency without the commissioners prior written approval. The commissioner may distribute any information, report, examination or statement relating to a licensee to any regulatory or law enforcement agency.

Section 9.The commissioner may investigate the books, accounts, records and files of a person that the commissioner has reason to believe is conducting the business of a provider in the commonwealth, whether the person acts or claims to act as a principal or agent, or under or without the authority of this chapter.

Section 10. (a) A licensee shall complete and furnish a written budget analysis to an individual before an individual may execute an agreement, which budget analysis may be based on information provided by the individual. A licensee shall not execute an agreement unless the budget analysis indicates that an individual can reasonably afford the payments established under the stated agreement. The commissioner shall determine the information that a budget analysis shall require.

(b) A licensee shall not accept compensation or gain, directly or indirectly, for performing debt management services before an individual executes an agreement. The agreement shall contain information that the commissioner shall determine. A licensee shall, at the time the agreement is executed, distribute a copy to the consumer.

(1) the debt management services that the licensee will perform;

(2) the fees that the licensee will charge the consumer;

(3) that agreements may not be suitable for all individuals;

(4) that participation in a debt management program may adversely affect the individual’s credit rating or credit scores;

(5) that nonpayment of debt may lead creditors to increase finance and other charges or undertake collection activity, including litigation;

(6) that, unless the individual is insolvent, if a creditor settles for less than the full amount of the debt, the program may result in the creation of taxable income to the individual, even though the individual does not receive any money;

(7) that specific results cannot be predicted or guaranteed and the provider cannot force negotiations or settlements with creditors;

(8) that debt management programs require that individuals meet certain regular savings goals in order to enable settlements;

(9) that the provider does not provide accounting or legal advice to individuals, unless the provider is professionally licensed to provide such advice;

(10) that, if the provider is a debt settlement company and not a credit counselor, the provider is the individual's advocate and does not receive compensation from creditors, banks, or third party collection agencies;

(11) that, if the provider is a debt settlement company and not a credit counselor, the provider is does not make monthly payments to the individual's creditors,

(11) if applicable, disclose that the agreement does not cover secured debt; and

(12) disclose the list of debts that the agreement covers as provided to the licensee by the consumer at the time of the agreement.

Section 11. (a) A consumer may terminate an agreement at any time without a termination penalty by notifying the licensee in writing of his intention to terminate the agreement. Notice is deemed effective on the date the consumer mails such notice.

(b) All fees and payments that the consumer made, other than fees earned hereunder by the licensee, shall be refunded in full on or before the tenth business day after a licensee receives a termination notice.

Section 12. (a) If a consumer fails to honor the consumers contractual obligations on or before the 60th day after the consumer was required to perform under an agreement, then the licensee may terminate the agreement with the consumer. Notwithstanding the foregoing, if a consumer refuses to pay any fee to a licensee after such payment has been earned by the licensee, then the licensee may terminate its agreement with the consumer immediately.

(b) If a licensee terminates an agreement, the licensee shall immediately return to the consumer any money that the licensee held in trust for the consumer.

Section 13. A licensee shall file with the commissioner an annual report in a form that the commissioner shall prescribe. The report shall be in writing, under oath, and contain information related to the conduct of a licensees business. If a licensee neglects to file an annual report or fails to amend the same on or before the fifteenth day after the commissioner provides notice to the licensee, then the licensee shall pay a fine of $50 per day during which the neglect or failure to amend the same continues.

Section 14. (a) A licensee shall maintain a separate trust account at a federally insured bank to hold funds that it receives from consumers. Trust accounts shall comply with regulations that the commissioner promulgates hereunder.

(b) A licensee shall not commingle money collected for a creditor with the licensees own funds or use any part of a consumers money in the conduct of the licensees business.

Section 15. (a) A licensee shall not impose, directly or indirectly, a fee or other charge on a consumer or receive payment from or on behalf of a consumer for performing debt management services except as provided in this Section 15.

(b) A licensee shall not impose charges or receive payment for debt management services until the licensee and the individual have signed an agreement that complies with section 10 and the regulations promulgated hereunder.

(c) If an agreement contemplates that creditors will settle an individual’s debts for less than the principal amount of the debt, a licensee may not charge or collect compensation for services in connection with settling a debt unless: the licensee has renegotiated, settled, reduced or otherwise altered the terms of at least one debt pursuant to a valid contractual agreement executed by the consumer; and the consumer has made at least one payment pursuant to the settlement agreement or other valid contractual agreement between the consumer and the creditor or debt collector.

(d) With respect to agreements in which no fees are charged or collected until such time as a settlement agreement has been reached with a creditor and at least one payment has been made towards such agreement by the individual, the provider may collect a fee that: bears the same proportional relationship to the total fee for renegotiating, settling, reducing, or altering the terms of the entire debt balance as the individual debt amount bears to the entire debt amount based on the time the debt was enrolled in the service; or is a percentage of the amount saved as a result of the renegotiation, settlement, reduction, or alteration, provided that the percentage charged to an individual cannot change from one debt to another, and provided further that the amount saved shall be calculated as the difference between the amount owed at the time the debt was enrolled in the plan and the amount actually paid to satisfy the debt.

(e) The amount or calculation of settlement fees charged under this Section 15 must be disclosed at the time of the inception of the agreement between the provider and the individual.

Section 15A. A licensee may not:

(a) take or exercise a power of attorney that authorizes it to settle a debt;

(b) exercise or attempt to exercise a power of attorney or any other authority of the individual after an individual has terminated his or her debt management agreement;

(c) initiate a transfer from an individual's account at a bank or with another person unless the transfer is: a return of money to the individual; before termination of an agreement, properly authorized by the agreement and this chapter for payment of a fee; or to a creditor to fund a negotiated settlement with that creditor;

(d) settle a debt or lead an individual to believe that a payment to a creditor is in settlement of a debt to the creditor unless, at the time of settlement, the individual receives a confirmation from the creditor that the payment is in full settlement of the debt, or is part of a payment plan that is in full settlement of the debt;

(e) make any representation that: the provider will furnish money to pay bills or prevent attachments; payment of a certain amount will guarantee satisfaction of a certain amount or range of indebtedness; or participation in a program will prevent litigation, garnishment, attachment, repossession, foreclosure, eviction, or loss of employment;

(f) misrepresent that the provider is able to furnish legal advice or perform legal services;

(g) represent that it is a not-for-profit entity unless it is organized and properly operating as a not-for-profit under the law of the state in which it was formed or that it is a tax-exempt entity unless it has received certification of tax-exempt status from the Internal Revenue Service;

(h) take a confession of judgment or power of attorney to confess judgment against an individual;

(i) employ any unfair, unconscionable, or deceptive act or practice, including the knowing omission of any material information;

(j) purchase a debt or obligation of the individual;

(k) receive from or on behalf of the individual a promissory note or other negotiable instrument other than a check or a demand draft or a post-dated check or demand draft;

(l) other than through an affiliate that is either separately licensed to perform lending in the commonwealth or exempt from such licensure, lend money or provide credit to the individual, except as a deferral of a settlement fee at no additional expense to the individual, or obtain a mortgage or other security interest from any person in connection with the services provided to the individual;

(m) except as permitted by federal law, disclose the identity or identifying information of the individual or the identity of the individual's creditors, except to: the commissioner, upon proper demand; or to the extent necessary to administer the program, including but not limited to a creditor of the individual.

Section 16. (a) A statement of accounting shall contain the following information:

(1) the amount of money that the consumer has paid to the provider since the provider prepared the last statement;

(2) the amounts, dates and creditors that the provider paid on the consumers behalf, since the provider prepared the last statement;

(3) the amounts of money that the provider collected as compensation from the consumers payments;

(4) the amount of money that the provider holds in trust for the consumer; and

(5) if, since the last statement date, the consumers creditor accepted a payment from the provider in full or partial satisfaction of the consumers debt with that creditor: (i) the total amount of money that the provider paid the creditor to settle a consumers debt; (ii) the amount of the debt at the time the provider and a consumer entered their agreement; (iii) the amount of a debt at the time a consumers creditor agreed to settle a debt with a provider; and (iv) the amount of compensation that the provider receives to settle a debt.

(b) A licensee shall distribute a statement of accounting to a consumer:

(1) while an agreement is in effect: (i) at least once per month; and (ii) on or before the fifth business day after a consumer demands a statement of accounting from a licensee; provided, however, a licensee may refuse to comply with more than 1 request for a statement of accounting per month; and

(2) on the day on which a consumer or a licensee rescinds or terminates an agreement.

(c) Notwithstanding the requirement set forth in clauses (1) and (2) of subsection (b), a provider that enables, or arranges to enable, 24 hours a day, 7 days a week, electronic access by a consumer to all of the consumers deposit account transaction information, including, but not limited to, all deposit and withdrawal activity, and electronic access by a consumer to debt management account activity, including, but not limited to, such settlement information as account status, settlement dates, settlement amounts and fees paid, shall be deemed to have satisfied the content requirements in subsection (a) and the distribution requirements in subsection (b).

Section 17. A person shall not advertise, announce, broadcast, display, distribute, print, publish, televise or permit any other person to advertise, announce, broadcast, display, distribute, print, publish or televise on its behalf a statement or representation that is deceptive, false or misleading.

17A. All communications required by this Act that take place between providers and individuals may take place by electronic means.

(a) In this section:

(1) "federal act" means the federal "electronic signatures in global and national commerce act", 15 U.S.C. sec. 7001 et seq., as amended.

(2) "consumer" means an individual who seeks or obtains goods or services that are used primarily for personal, family, or household purposes.

(b) a provider may satisfy the requirements of this chapter by means of the Internet or other electronic means if the provider obtains a consumer's consent in the manner provided by section 101 (c) (1) of the federal act.

(c) the disclosures and materials required by this chapter shall be presented in a form that is capable of being accurately reproduced for later reference.

(d) with respect to disclosure by means of an Internet web site, the disclosures required by this chapter must appear on one or more screens that:

(1) contains no other information; and

(2) the individual must see before proceeding to assent to formation of a program.

(e) at the time of providing the materials and agreement required by this chapter, a provider shall inform the individual that upon electronic, telephonic, or written request, it will send the individual a written copy of the materials and shall comply with a request as provided in subsection (f) of this section.

(f) if a provider is requested, before the expiration of ninety days after a program is completed or terminated, to send a written copy of the materials required by this chapter, the provider shall send them at no charge within three business days after the request, but the provider need not comply with a request more than once per calendar month or if it reasonably believes the request is made for purposes of harassment. If a request is made more than ninety days after a program is completed or terminated, the provider shall send within a reasonable time a written copy of the materials requested.

(g) a provider that maintains an Internet web site shall disclose on the home page or on a page that is clearly and conspicuously connected to the home page by a link that clearly reveals its contents:

(1) its name and all names under which it does business;

(2) its principal business address, telephone number, and electronic mail address, if any.

(h) subject to Section 22(i), if a consumer who has consented to electronic communication in the manner provided by section 101 of the federal act withdraws consent as provided in the federal act, a provider may terminate its agreement with the consumer.

(i) if a provider wishes to terminate an agreement with a consumer pursuant to Section 22(h), it shall notify the consumer that it will terminate the agreement unless the consumer, within thirty days after receiving the notification, consents to electronic communication in the manner provided in section 101 (c) of the federal act.

Section 18. If a licensee delegates a duty or obligation that this chapter mandates to another person, including an independent contractor, the licensee is liable for the other persons conduct that violates an agreement, this chapter or any of regulation of the division.

Section 19. A person that violates section 2 or any rule or regulation promulgated thereunder shall pay a fine of not more than $2,000 or be imprisoned in a house of correction for not more than 2 1/2 years or be imprisoned in state prison for not more than 5 years, or both a fine and imprisonment. Each day a violation occurs or continues shall be deemed a separate offense. This sections penalty provision shall be in addition to, and not in lieu of, the penalty provisions under any other law applicable to providers for violating section 2 or any rule or regulation made thereunder.

Section 20. (a) If the commissioner finds that a person has violated this chapter, a rule or regulation adopted thereunder or any other law applicable to the conduct of a provider, the commissioner may order or impose a penalty upon the person, which shall not exceed $5,000 per violation of law, rule or regulation, up to a maximum of $100,000 plus the costs of investigation.

(b) Nothing in this section limits an individuals right to bring an action against a provider that injured the individual to recover damages or restitution in a court of competent jurisdiction.

Section 21. A violation of this chapter shall be a violation of chapter 93A and an aggrieved individual may recover damages from a provider under this chapter and chapter 93A

SECTION 3. This act shall take effect 180 days after its passage, provided, however, that the authority for the commissioner to promulgate regulations in section 2 of chapter 255G of the General Laws, as appearing in section 2, shall take effect upon passage.