H. B. 4279
(By Delegates Beane, Ennis, Butcher, Hatfield,
Manchin, Martin, Perdue, Swartzmiller, Frich,
Schoen and Walters)
[Introduced January 30, 2006; 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 the Massage Therapy Licensure
Board; discontinuing waiver of requirements for licensure;
providing that board may require licensees formerly licensed
by waiver to meet certain requirements to reinstate lapsed
licenses; providing grounds for denial of renewal of
licenses; prohibiting practicing under lapsed license;
providing for disciplinary sanctions for certain prohibited
acts; clarifying that students of massage therapy may not
charge or receive fees; and increasing civil penalties.
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:
§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 Higher
Education Policy Commission 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
, or other
board approved 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 license to practice massage therapy issued by the board
prior to the first day of July, two thousand six, shall for all
purposes be considered a license issued under this section:
Provided, That a person holding a license to practice massage
therapy issued prior to the first day of July, two thousand six,
must renew the license pursuant to the provisions of this
article: Provided, however, That a person whose license was
issued by the board prior to the first day of July, two thousand
six, and whose license subsequently lapses may, in the discretion of the board, be subject to the licensing requirements 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 or other board
approved examination;
(d) 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.
(e) 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) (f) 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
or offering to practice 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) Practicing or offering to practice beyond the scope of
licensure of massage therapy without legal authority;
(5) (6) 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) (7) Practicing massage or bodywork with a license from
another state or jurisdiction that has been canceled, revoked,
suspended or otherwise restricted;
(7) (8) 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) (9) Convicted of sexual misconduct, assignation or the
solicitation or attempt thereof; or
(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;
or
(9) (12) 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, other discipline,
nonrenewal of license.
All proceedings for the revocation, suspension, or other
disciplinary sanctions, 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 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 charge
or 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 update licensure
requirements and strengthen enforcement provisions governing the
West Virginia Massage Therapy Licensure Board.
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that
would be added.
This bill is recommended by the Joint Committee on Government
Organization for passage during the 2006 Regular Session.