REGULATORY BOARD REVIEW OF THE
Massage Therapy Licensure Board
Licensure of the Practice of Massage
Therapy is not Needed to Protect Public Interest
The Board is not Complying with
Applicable Laws and Rules
The Massage Therapy Licensure Board was created under Chapter 30 of the West Virginia Code in 1997. As required by statute there are five board members. One is a lay person who must be a non-health care professional; one must be a osteopathic physician or a chiropractor; and the other three must be licensed massage therapists (LMT). All are appointed by the Governor for two year terms. Board members do not have term limitations.
Persons seeking a license must 1) complete an approved program of massage education or 2) have successfully passed the National Certification for Therapeutic Massage and Bodywork exam. In order to have a license renewed a licensee must complete 25 Continuing Education Units for each 2 year licensing period. As of July 14, 2000, there are 452 licensed massage therapists in West Virginia.
As defined in statute, §30-37-2(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.
Issue Area 1 : Licensure of the practice of Massage
Therapy is not needed to protect public interest.
This report is a "Regulatory Board Evaluation" which means that by law a determination is required to be made whether or not a board is necessary for the protection of public health and safety. The primary finding of this regulatory review is that licensing of the practice of massage therapy is not needed. A major consideration of the Legislative Auditor in this review is the following requirement in code (§4-10-5b):
The evaluation shall assess...whether the public interest requires that the board be continued.
In determining if there is a need for the Massage Therapy Licensure Board, a primary consideration is whether the unregulated practice of the profession clearly harms or endangers the health, safety or welfare of the public. Supporting data indicates that there is no easily recognizable harm to the public if the profession of massage therapy was unregulated. Most of the complaints the Board receives are accusations that a person may be practicing without a license. Only one complaint concerned the more serious matter of sexual assault. However, in this case the Board received the complaint and imposed disciplinary action subsequent to the individual being convicted of sexual assault by a court of law. In the state of Texas, which provided a list of its complaints, all of the complaints received were either misconduct of a sexual nature or unlicensed practices. Sexual misconduct is a matter to be taken to law-enforcement agencies and although of concern, it does not relate to harm associated with inadequately trained massage therapists.
Other states have also examined the need for regulation of massage therapists. The findings of their review are similar, as illustrated below:
According to the American Massage Therapy Association, 29 states and
the District of Columbia regulate the practice of massage therapy.(1)
Ten, or 33%, have stand alone boards, four are credentialed under another
licensing board and the remaining 16 are credentialed by a department of
the state. Table 1 illustrates where the massage therapy regulation function
Location of Massage Therapy Regulatory Function
Stand Alone Massage Board
|Licensing & Regulation Departments||Miscellaneous Departments|
|New York||Iowa||New Mexico||Utah|
|Arkansas||Rhode Island||South Carolina|
The unregulated profession of massage therapy would not present significant harm or danger to the health, safety or welfare of the public. Had this board applied through West Virginia's Sunrise process, it is likely the recommendation would have been not to establish a separate licensing board. Therefore, continued licensure of massage therapy is not needed. A less restrictive and more cost efficient manner of oversight would be certification of massage therapy under an existing board. Certification would involve primarily obtaining proof of an individual passing a nationally accepted test and maintaining a register of the names of certified individuals. This could be done under an existing licensing board such as the board for Chiropractors or the board for Physical Therapists.
The Legislature should consider terminating the Massage Therapy Licensure Board.
Should the Legislature choose not to terminate, the following recommendation is made:
The Legislature should consider requiring a less restrictive and more cost efficient manner of oversight of massage therapy such as certification, and placing this function under an existing licensing board, such as the board for Chiropractors or the board for Physical Therapists.
Issue Area 2: The Board is not complying with applicable
laws and rules.
The Board has not complied with many applicable laws and rules. These laws and rules, primarily found in the Board's own article of Code and within the general provisions of Chapter 30, are important in the effective operation of a licensing board. The Board has complied with the following requirements:
Improvements Have Been Made In Open Governmental Proceedings
As Table 2 below illustrates, the filing of Open Meeting Notices has improved. The validity of decisions made in meetings where a Notice was not filed is subject to question. It is important that the Board continue filing notices as it has done since 1999. In one instance, an executive session, held prior to the convening of the published meeting, was in conflict with the correct procedure. According to §6-9A-4(a),
The governing body of a public agency may hold an executive session during a regular, special or emergency meeting, in accordance with the provisions of this section. During the open portion of the meeting, prior to convening an executive session, the presiding officer of the governing body shall identify the authorization under this section for holding the executive session and present it to the governing body and to the general public, but no decision may be made in the executive session. [Emphasis added]
This executive session dealt with disciplining a licensee. Board minutes
do indicate the decision was made in the public session of the meeting.
|Open Meeting Notice Filed||2||4||4||1|
The Board takes complaints and responds to them. According to documents provided by the Board, a total of fifteen complaints were received since the Board was established four years ago and the first license issued in 1998, of which fourteen complaints alleged unlicensed activity. One complaint was received by the Board against a licensed massage therapist subsequent to being convicted of a felony by a court of law.(2)
Register and Roster of Applicants
Rather than maintaining a roster, as described in statute, the Board keeps a mailing list which contains names of individuals and organizations that are not licensed. With some modification, and by keeping the list not only alphabetically but arranged according to counties where practice is established, the roster could be separated from the mailing list.
Within the general provisions for Chapter 30 are the following provisions found in §30-1-12,
The secretary of every board shall keep a record of its proceedings and a register of all applicants for license or registration, showing for each the date of his or her application, his or her name, age, educational and other qualifications, place of residence, whether an examination was required, whether the applicant was rejected or a certificate of license or registration granted, the date of this action, the license or registration number, all renewals of the license or registration, if required, and any suspension or revocation thereof. [Emphasis added]
The Board has not kept this register. Complying would not only fulfill the statutory requirement but would allow the Board to maintain consistent practices, quickly ascertain which and how many of its licensees were grandfathered, granted a license due to reciprocity as well as any disciplinary actions taken against licensees.
Continuing Education Requirements Are Not Met
In the general provisions applicable to all boards (§30-1-7a) boards are to establish continuing education requirements that include course content, course approval, hours required and reporting periods. The Board is not meeting its obligation to establish course content or approve classes.
Board rule §194-1-3.2.c., indicates continuing education units must adhere to the National Certification Board for Therapeutic Massage and Bodywork (NCBTMB) guidelines. Not only does this provision result in the statutory requirement, §30-1-7a, to be addressed by a group other than the Board, but a letter to licensees informs them that they must contact NCBTMB for the guidelines.
NCBTMB has two categories for continuing education. One category lists courses offered by NCBTMB's approved providers, the second category lists courses not offered by an approved provider but whose courses NCBTMB has determined meets its definition of continuing education. NCBTMB requires fifty hours of continuing education units every four years, and of these fifty hours, two are required to be in professional ethics. As licensees are supposed to adhere to NCBTMB guidelines, this would translate to one hour of professional ethics for every two year renewal the Board requires of licensees. However, a sample of licensee files indicate that while licensees have taken 25 hours for each two year reporting period, the professional ethics requirement has only been met in 14 of 31 licensees or 45%.(3)
The Board was created to monitor the professional practice of massage therapists. NCBTMB is, according to its own website, a "private, nonprofit organization formed to set high standards of ethical and professional practice through a recognized, credible credentialing program." While the standards set by NCBTMB may be sufficient to protect the public, the Board should be deciding which courses contain the content it ascertains is sufficient as well as the courses it determines licensees need to renew. For instance, one letter the Board received from a licensee makes reference to the requirement that licensees are to complete twenty-five continuing education units in two years and that NCBTMB guidelines are to be followed. The licensee stated that since NCBTMB required a specified amount of ethics courses for continuing education did this mean the Board did as well. This confusion could be cleared if the Board were specifying approved courses and content and establishing its own guidelines.
Annual Election of Officers
Board minutes indicate the Board has not been annually electing its officers as required by the Chapter 30, Article 1. Elections seem to occur when terms of members expire instead resulting in terms of office being longer than one year.
Board Has Sufficient Fee Structure to Maintain Self-Sufficiency
Receipts collected from licensees to practice are deposited in a Special Revenue Fund and the expenses of the Board are disbursed from and charged to this fund, as required by §30-1-10. Table 3 shows that the Board is self-sufficient and is able to carry out its licensing responsibilities as required by law [§30-1-6(c)].
Board Revenues, Expenditures and Cash Balances
|FY 2000||FY 1999||FY 1998|
|End of Year Cash Balance||61,634.45||40,628.26||26,928.80|
|Source: 2000 PERD Analysis of FIMS Documents|
By January 1 of every year Boards are required by §30-1-12(b) to,
...submit to the governor and to the Legislature a report of its transactions for the preceding two years, an itemized statement of its receipts and disbursements for that period, a full list of the names of all persons licensed or registered by it during that period, statistical reports by county of practice, by speciality if appropriate to the particular profession, and a list of any complaints which were filed against persons licensed by the board, including any action taken by the board regarding those complaints.
All annual reports were requested; one was provided, 1999. The report was not submitted to the Clerk of either House. The Board submitted the receipt for certified mail that the report was received by the Governor's Office. Only one of the specifics spelled out above are met by the report, the list of persons licensed. There is not an itemized statement of receipts and disbursements, a statistical report by county and complaints are not listed.
If the Legislature decides to continue the Massage Therapy Licensure Board, the following recommendations apply:
The Board should continue holding all meetings in accordance with the Open Governmental Proceedings Act.
The Board should begin keeping the register of applicants as required by §30-1-12 and the roster as required by §30-1-13.
The Board should comply with the statutory requirements for continuing education.
As required by §30-1-3 the Board should annually elect from among its members a president and secretary.
The Board should fully comply with §30-1-12 by filing the annual report appropriately and including at a minimum what is specifically required.
1. The information does not indicate the level of regulation. There is evidence to suggest that at least three states issue a certificate and another requires only registration.
2. A licensee was convicted of third degree sexual assault; the Board placed the licensee on 5 years probation subject to therapeutic counseling, supervised settings for practice, continuing education relating to boundary issues and practice on clients 21 years of age or more.
3. The sample size was 63; however, new licensees were not counted nor were those who had not submitted a renewal application with accompanying proof of continuing education.