ENROLLED
COMMITTEE SUBSTITUTE
FOR
H. B. 2609
(By Delegates Fleischauer, Yeager, Staton,
Varner, Hutchins, Fragale and Dalton)
[Passed April 11, 1997; in effect July 1, 1997.]
An Act to amend chapter thirty of the code of West Virginia, one
thousand nine hundred thirty-one, as amended, by adding
thereto a new article, designated article thirty-seven,
relating to licensing massage therapists; license required
after the thirtieth day of June, one thousand nine hundred
ninety-eight; definitions; creating the West Virginia
massage therapy licensure board; appointment and terms of
members of board; meetings of board; reimbursement of
members' expenses; establishment of massage therapy
licensure board fund; powers of board; requirements for
licensure; authority of board to enforce provisions of
article; proceedings for the revocation, suspension or
nonrenewal of licenses; criminal penalties for violations of
provisions; persons and activities exempt from provisions of
article; and termination of the board.
Be it enacted by the Legislature of West Virginia:
That chapter thirty of the code of West Virginia, one
thousand nine hundred thirty-one, as amended, be amended by
adding thereto a new article, designated article thirty-seven, to read as follows:
ARTICLE 37. MASSAGE THERAPISTS.
§30-37-1. License required to practice.
To protect the health, safety and welfare of the public and
to ensure standards of competency, it is necessary to require
licensure of those engaged in the practice of massage therapy.
After the thirtieth day of June, one thousand nine hundred
ninety-eight, it shall be unlawful for any person not licensed
under the provisions of this article to practice massage therapy
in this state, or to use the initials LMT, C.M.T., 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, or 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.
§30-37-2. Definitions.
(a) "Board" means the West Virginia massage therapy
licensure board.
(b) "Massage therapist" means a person licensed to practice
the health care service of massage therapy under this article who
practices or administers massage therapy to a client of either
gender for compensation. No person licensed by the massage
therapy licensure board may be referred to as a primary care
provider nor be permitted to use such designation.
(c) "Massage therapy" means a health care service which is
a scientific and skillful manipulation of soft tissue for
therapeutic or remedial purposes, specifically for improving
muscle tone, circulation, promoting health and physical well-
being. Massage therapy includes massage, myotherapy,
massotherapy, bodywork, bodywork therapy, or therapeutic massage
including hydrotherapy, superficial hot and cold applications,
vibration and topical applications or other therapies which
involve manipulation of the muscle and connective tissue of the
body, for the purpose of enhancing health, reducing stress,
improving circulation, aiding muscle relaxation, increasing range
of motion, or relieving neuro-muscular pain. Massage therapy
does not include diagnosis or service which requires a license to
practice medicine or surgery, osteopathic medicine, chiropractic,
or podiatry, and does not include service performed by nurses,
occupational therapists, or physical therapists who act under
their own professional license, certificate or registration.
(d) "Massage establishment" means a place of business
wherein massage therapy is practiced.
§30-37-3. Board established; membership; terms.
There is hereby created the West Virginia massage therapy
licensure board. The board shall consist of five members who
shall be appointed by the governor with the advice and consent of
the Senate. Three members of the board shall be massage
therapists, chosen from a list of not less than five names
submitted by the West Virginia chapter of the American massage therapy association. One member of the board shall be an
osteopathic physician or chiropractor who is knowledgeable of
modalities which are included in massage therapy, and one member
of the board shall be a lay person who is not a massage therapist
or other health care professional.
The terms of board members shall be staggered initially
from the first day of July, one thousand nine hundred ninety- seven. The governor shall appoint initially three members for a
term of one year and two members for a term of two years.
Subsequent appointments shall be for a term of two years. Each
member shall serve until that member's successor is appointed and
qualified, unless the board member is no longer competently
performing the duties of office. Any vacancy on the board shall
be filled by the governor for the balance of the unexpired term.
The governor may remove members of the board from office for
cause.
§30-37-4. Quorum meetings; officers; reimbursement; staff.
(a) A majority of the full authorized membership of the
board constitutes a quorum.
(b) The board shall meet at least twice a year, at the times
and places that it determines.
(c) The board shall annually elect a chairperson and a
secretary/treasurer.
(d) Each member of the board is entitled to reimbursement of
travel and other necessary expenses actually incurred while
engaging in board activities. All reimbursement of expenses shall be paid out of the massage therapy board fund created by
the provisions of this article.
(e) The board may employ staff as necessary to perform the
functions of the board, including an administrative secretary,
and pay all personnel out of the massage therapy board fund
created by the provisions of this article.
(f) The board may contract with other state boards or state
agencies to share offices, personnel, and other administrative
functions as authorized under this article.
§30-37-5. Massage therapy board fund; fees; expenses;
disposition of funds.
(a) There is hereby established a massage therapy licensure
board fund in the state treasurer's office.
(b) The board may set reasonable fees for the issuance or
renewal of licenses and its other services. All funds to cover
the compensation and expenses of the board members shall be
generated by the fees set under this subsection.
(c) The disposition of all funds received by the board shall
be governed by the provisions of section ten, article one,
chapter thirty of this code.
§30-37-6. Duties of board; authorization to propose rules and
fees.
(a) The board shall be responsible for licensure and
continuing education requirements, standards of practice and
professional ethics, disciplinary actions, and other issues of
concern.
(b) The board shall propose rules for legislative approval
in accordance with the provisions of article three, chapter
twenty-nine-a of this code as are necessary to implement the
provisions of this article.
(c) The board shall adopt reasonable rules regarding
personal cleanliness of massage therapists and the sanitary
conditions of towels, linens, creams, lotions and other
materials, facilities, and equipment used in the practice of
massage therapy.
(d) All fees for licensure, renewal of licensure, and all
other related matters shall be set by the board.
§30-37-7. Requirements for licensure.
(a) The board shall propose rules establishing a procedure
for licensing of massage therapists. License requirements shall
include the following:
(1) Completion of a curriculum of massage education at a
school approved by the commission on massage training
accreditational approval or the West Virginia state college
system board. 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. This requirement may be waived for those
practitioners who were practicing massage therapy prior to the
first day of December, one thousand nine hundred ninety-four;
(2) Successful completion of the national certification for
therapeutic massage and body work (NCTMB) examination; except that any person who is currently practicing massage therapy and
who completed the American massage therapy association
educational and testing requirements prior to the first day of
December, one thousand nine hundred ninety-four, may be granted
a two year provisional license without having successfully
completed the national certification for therapeutic massage and
body work examination. Any such provisional license granted
under this exception shall expire in two years if the national
certification for therapeutic massage and body work examination
is not successfully completed within that time; and
(3) Payment of a reasonable fee annually required by the
board which shall compensate and be retained by the board for the
costs of administration.
(b) 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 including the successful
completion of the NCTMB examination.
(c) A massage therapist who is licensed by the board shall
be issued a certificate and a license number. The current, valid
license certificate must 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 pursuant to rules adopted in
accordance with this article concerning board requirements for
licensure. The following are grounds for revocation, suspension,
or annulment 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) In violation of any of the provisions of this article or
any substantive rule adopted under the authority of this article.
§30-37-9. Hearing for revocation, suspension, nonrenewal.
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.
§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, C.M.T., 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 hundred dollars nor more than five hundred 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:
(1) 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
of a West Virginia state college system certified or authorized
massage therapy school, provided that the student does not hold
himself or herself out as a licensed massage therapist; and
(2) 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 thereof. 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.
§30-37-12. Termination of board.
The massage therapy licensure board shall be terminated
pursuant to the provisions of article ten, chapter four of this
code, on the first day of July, two thousand one, unless sooner
terminated, continued or reestablished pursuant to the provisions
of such article.
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