H. B. 2609
(By Delegates Fleischauer, Yeager, Staton,
Varner, Hutchins, Fragale and Dalton)
[Introduced March 19, 1997; referred to the
Committee on Government Organization then Finance.]
A BILL 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 for massage therapists; definitions;
creating a massage therapy licensing board; board
membership; quorum; meetings; reimbursement; staff; rule
making authority; powers and duties of board; massage
therapy board fund; fees; requirements for licensure;
provisions for denying, suspending or revoking license;
enforcement powers; administrative hearings; judicial
review; prohibitions and penalties; exemptions;
nondiscriminatory treatment; 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 any title, sign, card or device to
indicate that he or she is a massage therapist.
§30-37-2. Definitions.
(a) "Board" means the 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 consists 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 board shall pay all fees collected under the
provisions of this article to the state treasurer.
(d) The fund shall be used exclusively to cover the actual
documented direct and indirect costs of fulfilling the statutory
and regulatory duties of the board as provided by the provision of this article. The fund is a continuing, nonlapsing fund. Any
unspent portion of the fund may not be transferred nor revert to
the general revenue fund of the state, but shall remain in the
fund to be used for the purposes specified in this article.
(e) The legislative auditor shall audit the accounts and
transactions of the fund.
§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 (COMTAA) 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.
(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.
(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.
(a) Complaints related to a violation of this article may be
presented by any person, or the board may on its own motion,
direct the chairperson of the board to file the complaint. Any
complaint shall be filed in writing. Upon filing with the board
a written complaint charging a person with violating the
provisions of this article, the chairperson, or other designated
representative of the board, shall provide a copy of the
complaint or list of allegations to the person about whom the
complaint was filed. That person will have twenty days
thereafter to file a written response to the complaint. The
board shall thereafter, if the allegations warrant, make an
investigation. If the board finds reasonable grounds for the
complaint, a time and place for a hearing shall be set, notice of
which shall be served on the licensee or applicant at least
fifteen calendar days in advance of the hearing date. The notice
shall be by personal service or by certified or registered mail
sent to the last known address of the person.
(b) Any person adversely affected by any order is entitled to a hearing thereon pursuant to the provisions of article five,
chapter twenty-nine-a of this code if, within twenty days after
receipt of a copy of the order, he or she files with the board a
written demand for the hearing.
(c) Upon a receipt of a written demand for a hearing, the
board shall set a time and place therefor not less than ten and
not more than thirty days thereafter. Any scheduled hearing may
be continued by the board upon its own motion or for good cause
shown by the person demanding the hearing.
(d) The provisions of article five, chapter twenty-nine-a of
this code apply to and govern the hearing and administrative
procedures in connection therewith.
(e) All administrative hearings shall be conducted by a
quorum of the board. For the purpose of conducting any hearing
any member of the board may issue subpoenas and subpoenas duces
tecum which shall be issued and served pursuant to the provisions
of section one, article five, chapter twenty-nine-a of this code.
(f) At any hearing the person who demanded the same may
represent himself or herself or be represented by an attorney
admitted to practice in this state.
(g) After any hearing and consideration of all testimony,
evidence and record in the case, the board shall render its
decision in writing. The written decision of the board shall be
accompanied by findings of fact and conclusions of law as specified in section three, article five, chapter twenty-nine-a
of this code. A copy of the decision and accompanying findings
and conclusions shall be served by certified mail, return receipt
requested, upon the person demanding the hearing, and the
attorney of record.
(h) The decision of the board is final unless reversed,
vacated or modified upon judicial review thereof in accordance
with the provisions of subsection (i) of this section.
(i) Any applicant or licensee adversely affected by a
decision of the board rendered after a hearing held pursuant to
the provisions of this section is entitled to judicial review
thereof. All of the provisions of section four, article five,
chapter twenty-nine-a of this code apply to, and govern, such
review.
§30-37-10. Prohibitions and penalties.
(a) 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:
(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 subsection (a) include, but are not
limited to, any branch of medicine, nursing, osteopathy,
chiropractic, podiatry, 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
(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 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. Nondiscriminatory treatment of massage therapists.
No city, township, or county governmental body, agency or
department may enact or enforce restrictions or requirements
regarding licensed massage therapists which are not equally
enacted or enforced regarding all health care practitioners,
including, but not limited to, zoning, building codes, health
and sanitation requirements.
§30-37-13. 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.
NOTE: The purpose of this bill is to create the West
Virginia Massage Therapy Licensure Board. The board is given the
authority to adopt rules governing the practice of massage
therapy, and is authorized to suspend or revoke licenses and to otherwise enforce the provisions of this article. Massage
therapy is defined, and education and examination standards for
licensure are set forth.
This article is new; therefore, strike-throughs and
underscoring have been omitted.
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