Senate
House
Joint
Bill Status
WV Code
Audits/ Reports
Educational
Contact
home
home

Introduced Version House Bill 3021 History

   |  Email


hb3021 intr
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.
This Web site is maintained by the West Virginia Legislature's Office of Reference & Information.  |  Terms of Use  |   Web Administrator   |   © 2014 West Virginia Legislature ****