COMMITTEE SUBSTITUTE
FOR
H. B. 4035
(By Delegates Fleischauer, Staton, Fragale, Dalton, Varner,
Hutchins and Yeager)
(Originating in the Committee on Government Organization)
[February 3, 1998]
A BILL to amend and reenact section three-z, article one, chapter
seven of the code of West Virginia, one thousand nine
hundred thirty-one, as amended; and to amend and reenact
sections three, five, six, seven and eleven, article thirty- seven, chapter thirty of the code of West Virginia, one
thousand nine hundred thirty-one, as amended, relating to
licensing massage therapists; excepting licensed massage
therapists from the authority of county commissions;
composition of board; duties of board to propose rules;
requirements for licensure; and exemptions.
Be it enacted by the Legislature of West Virginia:
That section three-z, article one, chapter seven of the code
of West Virginia, one thousand nine hundred thirty-one, as
amended, be amended and reenacted; and that sections three, five,
six, seven and eleven, article thirty-seven, chapter thirty, be
amended and reenacted to read as follows:
CHAPTER 7. COUNTY COMMISSIONS AND OFFICERS.
ARTICLE 1. COUNTY COMMISSIONS GENERALLY.
§7-1-3z. Authority of counties to govern business of massage.
(a) In addition to all other powers and duties now conferred
by law upon county commissions, county commissions are hereby
authorized and empowered, by order duly entered of record, to
adopt an ordinance which provides for the licensing for the
regulation of the business of massage when carried on within the
county. Such ordinances may be adopted either for the entire
county, or for any portion or portions of such county which may
constitute an effective area or areas for such purposes, without
the necessity of adopting such ordinances for any other portion
of such county. Notwithstanding any other provision of this
section to the contrary, no such ordinance shall apply to or
affect any territory within the boundaries of any municipal
corporation which has adopted and in effect an ordinance which
provides for the regulation of the business of massage, unless
and until such municipal corporation so provides by ordinance.
(b) The ordinance may condition the issuance of a license to
engage in the business of massage upon proof that a massage
business meets the reasonable standards set by the ordinance,
which standards may include, but need not be limited to, the
following areas:
(1) Requirement that massage personnel be at least eighteen
years of age;
(2) Sanitary conditions of the massage establishment;
(3) Hours of operation of the massage business;
(4) Prohibition of the sale or serving of food or beverage
or the conducting of nonmassage business on the premises of the
massage business. In the event that the business premises in
which such massage business is conducted has separate quarters
used for purposes other than the massage business, the
prohibition of this subsection shall apply only to the portion of
the premises exclusively devoted to the conduct of the massage
business.
(c) The ordinance may also provide that a license to engage
in the business of massage may be denied upon a showing by the
licensing authority of any of the following:
(1) Proof that the massage personnel or the owners or
operators of a massage business have been convicted of a
violation of any of the provisions of article eight, eight-a,
eight-b or eight-c, chapter sixty-one of this code or proof that
massage personnel or the owners or operators of a massage
business have been convicted in any other state of any offense
which, if committed or attempted in this state, would have been
punishable as one or more of the above-mentioned offenses of this
subsection.
(2) Proof that the massage personnel, or the owners, or
operators of a massage business have been convicted of any felony
offense involving the sale of a controlled substance specified in
section two hundred four, two hundred six, two hundred eight, two
hundred ten or two hundred twelve, article two, chapter sixty-a
of this code or proof that the massage personnel or the owners or operators of the massage business have been convicted in any
other state of any offense, which if committed or attempted in
this state, would have been punishable as one or more of the
above-mentioned offenses of this subsection.
(d) The ordinance may require that application to conduct
the business of massage be made on such form as prescribed by the
licensing authority, which application may require the following
information:
(1) The name of the applicant;
(2) If such applicant be an unincorporated association, the
names and addresses of the members of its governing board;
(3) If such applicant be a corporation, the names and
addresses of its officers and directors;
(4) The place at which such applicant will conduct its
operations and whether the same is owned or leased by the
applicant;
(5) The name of the owner of the place at which the
applicant will conduct its operation, if not the same as the
applicant;
(6) The number of members of the applicant;
(7) The names of all massage personnel, owners, operators or
other employees of the massage business;
(8) Such other information as the licensing authority may
reasonably require which may include, but need not be limited to,
the criminal records, if any, of each member of the applicant's
governing board and/or its officers and directors, or any of the massage personnel, owners, operators or other employees of the
massage business who have been convicted of any violation of any
of the provisions set forth in subsection (c).
The ordinance may require that such application be verified
by the applicant or by each member of the governing board of the
applicant if an unincorporated association or, if the applicant
be a corporation, by each of its officers and all members of its
board of directors. The ordinance may also require that such
application be accompanied by a license fee not exceeding the sum
of one hundred dollars. Any license issued under the provisions
of this section shall be effective for one year and may be
renewed upon the same showing as required for the issuance of the
initial license, together with the payment of fees, if any. The
ordinance may require license holders to notify the licensing
authority of any changes in the information required by the
application within a reasonable period after such changes may
occur.
(e) This section does not apply to barbers or beauticians
licensed to practice, or to persons licensed to practice in any
of the health professions,
or to persons licensed to practice as
massage therapists, under the provisions of chapter thirty of
this code when engaging in such practice within the scope of his
or her license.
(f) Nothing contained in this chapter shall preclude a
county commission from prohibiting a person of one sex from
engaging in the massage of a person of the other sex.
CHAPTER 30. PROFESSIONS AND OCCUPATIONS.
ARTICLE 37. MASSAGE THERAPISTS.
§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. O 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.
§30-37-5. 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
by legislative rule 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) (a) 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,
which shall include provisions
regarding:
(1) Licensure and continuing education requirements,
standards of practice and professional ethics, disciplinary
actions, and other issues of concern;
(c) (2) 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,
and;
(d) (3) 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
for legislative approval
establishing a procedure for licensing of massage therapists.
License requirements shall include the following:
(1) Completion of a
curriculum program of massage education
at a school approved by
the commission on massage training
accreditational approval or 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.
This requirement 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 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, as of June 30,
1998, and has completed at least 250 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
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 every two years
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 which may include
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.
§30-37-11. 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 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
(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.