H. B. 3021
(By Mr. Speaker, Mr. Kiss and Delegates Beane,
Ennis, Walters, G. White and Butcher)
[Introduced
March 14, 2005
; referred to the
Committee on Government Organization.]
A BILL to amend and reenact §30-37-7, §30-37-8, §30-37-9, §30-37-10
and §30-37-11 of the Code of West Virginia, 1931, as amended,
all relating to amending licensure procedures for massage
therapists; providing procedures for renewal and reinstatement
of licenses; providing penalties; providing that disciplinary
sanctions may be imposed in order to enforce the provisions
regulating massage therapists; including certain prohibited
acts while engaged as a massage therapist; providing a hearing
process when licenses are suspended, revoked or not renewed;
and raising the criminal fine from five hundred dollars to
five thousand dollars.
Be it enacted by the Legislature of West Virginia:
That §30-37-7, §30-37-8, §30-37-9, §30-37-10 and §30-37-11
of
the Code of West Virginia, 1931, as amended, be amended and
reenacted, all to read as follows:
ARTICLE 37. MASSAGE THERAPISTS.
§30-37-7. Requirements for licensure; renewal of licenses;
reinstatement; penalties.
(a) The Board shall propose rules for legislative approval
in
accordance with article three, chapter twenty-nine-a of this code,
establishing a procedure for licensing of massage therapists.
License requirements shall include the following:
(1) Completion of a program of massage education at a school
approved by the West Virginia State College System Board or by a
state agency in another state, the District of Columbia or a United
States territory which approves educational programs and which
meets qualifications for the National Certification Exam
administered through the National Certification Board for
Therapeutic Massage and Bodywork. This school shall require a
diploma from an accredited high school, or the equivalent, and
require completion of at least five hundred hours of supervised
academic instruction;
The requirements of this subdivision may be
waived for those practitioners who were practicing massage therapy
prior to the first day of December, one thousand nine hundred
ninety-four; or
(2) Successful completion of the National Certification for
Therapeutic Massage and Bodywork (NCTMB) examination;
except that
any person who is currently practicing massage therapy as of the
thirtieth day of June, one thousand nine hundred ninety-eight, and
has completed at least two hundred fifty hours of training in a massage therapy educational program and is currently working toward
completion of a program accepted by the national Certification
Board for Therapeutic Massage and Bodywork to be eligible to take
the National Certification Exam, may be granted a two-year
provisional license without having successfully completed the
national certification for therapeutic massage and bodywork
examination. Any provisional license granted under this exception
expires in two years if the national certification for therapeutic
massage and bodywork examination is not successfully completed
within that time; and
(3) Payment of a reasonable fee every two years required by
the Board which shall compensate and be retained by the Board for
the costs of administration.
(b) A person licensed under the provisions of this article as
of the reenactment of this section in the year two thousand five,
will be considered to have met the requirements set forth in
subdivision (1) and subdivision (2) of subsection (a) of this
section for purposes of renewal of license: Provided, That a
person whose license was granted before the reenactment of this
article in the year two thousand five and whose license
subsequently lapses may, in the discretion of the Board, be subject
to the requirements of subdivision (1) and subdivision (2) of
subsection (a) of this section.
(b) (c) In addition to provisions for licensure, the rules shall include the following:
(1) Requirements for completion of continuing education hours
conforming to NCTMB guidelines;
and
(2) Requirements for issuance of a reciprocal license to
licensees of states with requirements which may include the
successful completion of the NCTMB examination;
and
(3) A schedule of fees, including nonrefundable application
fees for initial, reciprocal or renewed licenses; licensure fees;
reinstatement fees; and fees for other services provided by the
Board.
(d) Any person applying for an initial or reciprocal license
to practice massage therapy under the provisions of this article
shall, with his or her application, pay to the Board a
nonrefundable initial application fee and a licensure fee set by
rule of the Board.
(e) The license of every person licensed and registered under
the provisions of this article shall be renewed every two years.
The Board shall mail a renewal application to each licensee whose
license was issued or renewed during the previous licensing period,
at least thirty days before the expiration date of the license.
Each licensee shall complete the application and return it to the
Board with a nonrefundable renewal application fee and a licensure
renewal fee. Upon receipt of the application and fees, the Board
shall verify the completeness and accuracy of the application. The Board shall issue a certificate of renewal to each licensee who
submits a complete and accurate application together with the
required fees, which entitles the licensee to practice massage
therapy for the time period stated on the certificate.
(f) Subject to the provisions of subsection (b) of this
section, the Board may deny an application for renewal for any
reason which would justify the denial of an application for initial
licensure.
(g) The Board may reinstate a license which has lapsed, upon
the licensee's satisfactory explanation for the failure to renew,
payment of a reinstatement fee and satisfaction of all requirements
lawfully imposed by the Board.
(h) Any person practicing massage therapy during the time his
or her license has lapsed is in violation of this article and is
subject to the penalties provided in this article.
(c) (i) A massage therapist who is licensed by the Board shall
be issued a certificate and a license number. The current, valid
license certificate shall be publicly displayed and available for
inspection by the Board and the public at a massage therapist's
work site.
§30-37-8. Enforcement.
(a) The Board has the power and authority to enter into any
court of this state having proper jurisdiction to seek an
injunction against any person, corporation or association not in compliance with the provisions of this article, and is further
empowered to enter into any court to enforce the provisions of this
article to ensure compliance with such provisions.
(b) The Board may suspend, revoke, or impose probationary
conditions upon a license
issued or impose disciplinary sanctions
upon a licensee pursuant to rules adopted in accordance with this
article concerning board requirements for licensure. The following
are grounds for revocation, suspension,
or annulment
or the
imposition of other disciplinary sanctions when a person,
corporation or association is:
(1) Guilty of fraud in practice of massage, or fraud or deceit
in the licensee's application for licensure;
(2) Engaged in practice under a false or assumed name, or
impersonating another practitioner of a like or different name;
(3) Addicted to the habitual use of drugs, alcohol or
stimulants to an extent as to incapacitate that person's
performance of professional duties;
(4) Guilty of fraudulent, false, misleading or deceptive
advertising, or for prescribing medicines or drugs, or practicing
any licensed profession without legal authority. The licensee may
not diagnose, or imply or advertise in any way a service for a
condition that would require diagnosis;
(5) Grossly negligent in the practice of massage or guilty of
employing, allowing or permitting an unlicensed person to perform massage in the licensee's work site;
(6) Practicing massage or bodywork with a license from another
state or jurisdiction that has been canceled, revoked, suspended or
otherwise restricted;
(7) Incapacitated by a physical or mental disability which is
determined by a physician to render further practice by the
licensee inconsistent with competency and ethics requirements;
(8) Convicted of sexual misconduct, assignation or the
solicitation or attempt thereof;
or
(9) Practicing or offering to practice beyond the scope
permitted by law;
(10) Engaging in any act of sexual abuse, sexual misconduct or
sexual exploitation related to the licensee's practice of massage
therapy;
(11) Obtaining any fee by fraud, deceit or misrepresentation;
(12) Practicing under a license that has lapsed and not been
renewed; or
(9) (13) In violation of any of the provisions of this article
or any substantive rule adopted under the authority of this
article.
§30-37-9. Hearings; orders; entry of order without notice and
hearing; judicial review; appeals to Supreme Court
of Appeals.
(a) All proceedings for the revocation, suspension or nonrenewal of licenses issued under the authority of this chapter
shall be governed by the provisions of section eight, article one,
chapter thirty of this code.
(b) Subject to the provisions of subsection (c) of this
section, the Board shall provide notice and hearing to the accused
party in advance of the entry of any order. The hearing and the
administrative procedures are governed by the provisions of article
five, chapter twenty-nine-a of this code and the board's rules, and
will be held at a time and place set by the Board, but may not be
held less than thirty days after the notice is given. A hearing
may be continued by the Board on its own motion or for good cause
shown. At any hearing a party may represent himself or herself, or
be represented by an attorney admitted to practice before any court
of record of this state.
(c) The Board has the power and authority to issue subpoenas
and subpoenas duces tecum, administer oaths and examine any person
under oath in connection with any subject relating to duties
imposed upon or powers vested in the Board.
(d) If the Board finds circumstances which pose a threat to
the health, safety or welfare of the public, it may without notice
or hearing enter an order taking any action permitted by this
article. Immediately upon the entry of the order, the Board shall
serve certified copies upon all persons affected, who upon demand
are entitled to a hearing at the earliest practicable time.
(e) If, at the conclusion of the hearing, the Board determines
that a licensee has violated any of the provisions of this article
or the board's rules, it shall prepare a formal decision containing
findings of fact, conclusions of law, and disciplinary actions to
be taken.
(f) The Board may elect to have an administrative law judge or
hearing examiner conduct the hearing. If the Board makes this
election, the administrative law judge or hearing examiner shall
present a decision containing recommended findings of fact,
conclusions of law, and appropriate disciplinary actions to be
taken. The Board may accept, reject or modify the decision of the
administrative law judge or hearing examiner.
(g) Any party adversely affected by a final order or decision
made by the Board after a hearing is entitled to judicial review as
provided in article five, chapter twenty-nine-a of this code.
(h) Any party adversely affected by a final judgment of a
circuit court following judicial review may seek review by appeal
to the Supreme Court of Appeals in the manner provided in article
six, chapter twenty-nine-a of this code.
§30-37-10. Prohibitions and penalties.
(a) After the thirtieth day of June, one thousand nine
hundred ninety-eight, a person, corporation or association who is
not licensed pursuant to the provisions of this article, may not
engage in the practice of massage therapy and may not use the initials LMT, CMT, or the words "licensed massage therapist,"
"masseur," or "masseuse," or any other words or titles which imply
or represent that the person, corporation or association is
engaging in the practice of massage therapy, nor may a person,
corporation or association employ any person, not duly licensed,
who is engaging in the practice of massage therapy or who is using
such words or titles to imply or represent that he or she is
engaging in the practice of massage therapy.
(b) Any person, corporation or association who violates the
provisions of subsection (a) of this section is guilty of a
misdemeanor and, upon conviction thereof, shall be fined not less
than
one five hundred dollars nor more than
five hundred one
thousand dollars, or confined in
the county or regional jail not
more than one year, or both fined and imprisoned.
§30-37-11. Exemptions.
Nothing in this article may be construed to prohibit or
otherwise limit:
(a) The practice of a profession by persons who are licensed,
certified or registered under the laws of this state and who are
performing services within their authorized scope of practice.
Persons exempted under this subdivision include, but are not
limited to, those licensed, certified or registered to practice
within the scope of any branch of medicine, nursing, osteopathy,
chiropractic and podiatry, as well as licensed, certified or registered barbers, cosmetologists, athletic trainers, physical and
occupational therapists; and any student enrolled in a program of
massage education at a school approved by the West Virginia State
College System Board or by a state agency in another state, the
District of Columbia or a United States territory which approves
educational programs and which meets qualifications for the
National Certification Exam administered through the National
Certification Board for Therapeutic Massage and Bodywork, provided
that the student does not hold himself or herself out as a licensed
massage therapist
and does not receive a fee; and
(b) The activities of any resort spa that has been operating
on a continuing basis since the first day of January, one thousand
nine hundred seventy-five, or any employees of the resort spa. The
exemption set forth in this subsection does not extend to any
person, corporation or association providing escort services, nude
dancing, or other sexually oriented services not falling within the
scope of massage therapy as defined in this article, irrespective
of how long the person, corporation or association has been in
operation.
NOTE: The purpose of this bill is to
amend licensure
procedures for massage therapists by: (1) Providing procedures for
renewal and reinstatement of licenses; (2)providing penalties;
(3)providing that disciplinary sanctions may be imposed in order to
enforce the provisions regulating massage therapists; (4) including
certain prohibited acts while engaged as a massage therapist;
(5)providing a hearing process when licenses are suspended, revoked or not renewed; and (6) raising the criminal fine from $500 to
$5000.
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would
be added.
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