Title of Regulation: 18VAC90-50. Regulations Governing the Licensure of Massage Therapists (amending 18VAC90-50-40, 18VAC90-50-60, 18VAC90-50-70, 18VAC90-50-75, 18VAC90-50-90).

Statutory Authority: §§ 54.1-2400 and 54.1-3005 of the Code of Virginia.

Public Hearing Information:

July 18, 2017 - 10 a.m. - Conference Center, Perimeter Center, 9960 Mayland Drive, Suite 201 Richmond, VA 23233

Public Comment Deadline: August 11, 2017.

Agency Contact: Jay P. Douglas, R.N., Executive Director, Board of Nursing, 9960 Mayland Drive, Suite 300, Richmond, VA 23233-1463, telephone (804) 367-4520, FAX (804) 527-4455, or email jay.douglas@dhp.virginia.gov.

Basis: Section 54.1-2400 of the Code of Virginia authorizes the Board of Nursing to promulgate regulations to administer the regulatory system. The specific authorization to promulgate regulations for massage therapists is found in Chapter 30 (§ 54.1-3000 et seq.) of Title 54.1 of the Code of Virginia.

Purpose: Over the years since initial certification, massage therapy has evolved as a health care profession. In 2016, legislation passed in the General Assembly changing the level of regulation from certification to licensure. In the periodic review of 18VAC90-50, it was noted that there needs to be more assurance of ethical behavior and accountability for unprofessional conduct. Accordingly, the board proposes to add a requirement for initial licensure that an applicant has read the laws and regulations and will comply with the code of ethics for the profession. Additionally, the board proposes to add several new provisions to the disciplinary section regarding boundary violations, falsification of records, reporting of abuse, and patient confidentiality. Greater oversight and accountability will benefit the health, safety, and welfare of clients who avail themselves of massage therapy services.

Substance: In a separate action, the board amended 18VAC90-50 to conform the regulation to the statutory change from certification to licensure of massage therapists, pursuant to Chapter 324 of the 2016 Acts of Assembly. In accordance with § 2.2-4006 A 4 a of the Code of Virginia, that action was exempt from the requirements of the Administrative Process Act (§2.2-4000 et seq. of the Code of Virginia).

In addition to changing all references from certification to licensure and adding the requirement for a criminal background for all applicants, the board published a Notice of Intended Regulatory Action. After conducting a review of all sections of 18VAC90-50 and the public comment received in response to the Notice of Periodic Review, the Advisory Board on Massage Therapy recommended and the Board of Nursing identify the following provisions being considered for amendment:

18VAC90-50-40 Initial certification: Amend to (i) require attestation of having read and that the applicant will comply with laws and regulations and the professional code of ethics relating to massage therapy and (ii) require certification of equivalency for education obtained in another country from a credentialing body acceptable to the board.

18VAC90-50-60 Provisional certification: Amend to: (i) clarify that someone is eligible for a provisional license when he has filed a completed application, including completion of educational requirement, while waiting to take the licensing examination and (ii) specify that no more than one provisional license may be granted.

18VAC90-50-70 Renewal of certification: Clarify that if a license is lapsed, one may not use the title of massage therapist and may not practice massage therapy.

18VAC90-50-80 Continuing competency requirements: Amend to expand the listing of approved providers of continuing education.

18VAC90-50-90 Disciplinary provisions: Amend to include grounds for disciplinary action currently found in other nursing regulations but missing in 18VAC90-50 for licensed massage therapists.

Issues: The primary advantage to the public is the greater protection for the citizens of the Commonwealth who receive massage therapy services; additional grounds for disciplinary action will further protect the privacy of patient information and protect clients from exploitation by fraud, misrepresentation, or duress. There are no disadvantages.

There are no advantages or disadvantages to the agency or the Commonwealth.

Department of Planning and Budget's Economic Impact Analysis:

Summary of the Proposed Amendments to Regulation. As a result of the periodic review of regulations, the Board of Nursing (Board) proposes to amend the Regulations Governing the Licensure of Massage Therapists to: 1) offer additional options for completing continuing education; 2) explicitly include additional provisions to the standards of conduct, the violation of which may subject a licensee to disciplinary action; 3) require an attestation of compliance with laws and ethics for initial licensure; and 4) amend language for clarity.

Result of Analysis. The benefits likely exceed the costs for all proposed changes.

Estimated Economic Impact.

Continuing Education Options: In order to renew a license biennially, a licensed massage therapist must complete at least 24 hours of continuing education or learning activities. Under the current regulation, a minimum of 12 of the 24 hours must be in activities or courses provided by a National Certification Board for Therapeutic Massage and Bodywork-approved provider. The Board proposes to allow activities or courses provided by the following organizations as well: 1) Federation of State Massage Therapy Boards, 2) American Massage Therapy Association, 3) Associated Bodywork and Massage Professionals, 4) Commission on Massage Therapy Accreditation, 5) a nationally or regionally accredited school or program of massage therapy, and 6) a school of massage therapy approved by the State Council of Higher Education for Virginia. The addition of approved providers would potentially be beneficial for licensees in that they may be able to obtain coursework at a lower cost and there may be greater opportunity to become more professionally qualified in specialty areas of practice.

Unprofessional Conduct: § 54.1-3007 of the Code of Virginia authorizes the Board to take disciplinary action for unprofessional conduct. However, it does not define unprofessional conduct. The current regulation states that unprofessional conduct shall mean, but shall not be limited to:

a. Performing acts which constitute the practice of any other health care profession for which a license or a certificate is required or acts which are beyond the limits of the practice of massage therapy as defined in § 54.1-3000 of the Code of Virginia;

b. Assuming duties and responsibilities within the practice of massage therapy without adequate training or when competency has not been maintained;

c. Failing to acknowledge the limitations of and contraindications for massage and bodywork or failing to refer patients to appropriate health care professionals when indicated;

d. Entering into a relationship with a patient or client that constitutes a professional boundary violation in which the massage therapist uses his professional position to take advantage of the vulnerability of a patient, a client, or his family, to include but not be limited to actions that result in personal gain at the expense of the patient or client, a nontherapeutic personal involvement or sexual conduct with a patient or client;

e. Falsifying or otherwise altering patient or employer records;

f. Violating the privacy of patients or the confidentiality of patient information unless required to do so by law;

g. Employing or assigning unqualified persons to practice under the title of "massage therapist" or "licensed massage therapist";

h. Engaging in any material misrepresentation in the course of one's practice as a massage therapist; or

i. Failing to practice in a manner consistent with the code of ethics of the NCBTMB, as incorporated by reference into this chapter with the exception of the requirement to follow all policies, procedures, guidelines, regulations, codes, and requirements promulgated by the NCBTMB.

The Board proposes to add the following five provisions to the list:

1) obtaining money or property of a patient or client by fraud, misrepresentation or duress;

2) violating state laws relating to the privacy of patient information, including but not limited to § 32.1-127.1:03 of the Code of Virginia;

3) failing to report evidence of child abuse or neglect as required in § 63.2-1509 of the Code of Virginia or elder abuse or neglect as required in § 63.2-1606 of the Code of Virginia;

4) providing false information to staff or board members in the course of an investigation or proceeding; and

5) violating any provision of this chapter.

All five of the proposed additional provisions are listed as actions that are considered unprofessional conduct for nurses in the Board's Regulations Governing the Practice of Nursing (18 VAC 90-19). Since the five additional provisions can in practice be considered unprofessional practice,¹ adding them explicitly to the regulation is beneficial in that it improves clarity for massage therapists and other readers of the regulation. It may also reduce the likelihood that massage therapists unintentionally violate the law through ignorance of § 32.1-127.1:03, § 63.2-1509, or § 63.2-1606 of the Code of Virginia.

Attestation of Compliance: The Board proposes to add to the requirements for initial licensure as a massage therapist that the applicant "attest that he has read and will comply with laws and regulations and the professional Code of Ethics relating to massage therapy." This proposal may be moderately beneficial in that it may: 1) increase the likelihood that new massage therapists are consciously aware of the specifics of the applicable laws and regulations and the professional Code of Ethics, and 2) reduce the likelihood that new massage therapists inadvertently violate applicable laws and regulations and the professional Code of Ethics.

Clarification: Improving the clarity of the regulation would potentially also be beneficial to the extent that it reduces the likelihood that readers of the regulation misunderstand applicable rules and requirements.

Businesses and Entities Affected. The proposed amendments potentially affect the 8,178 licensed massage therapists in the Commonwealth,² future licensure applicants, and providers of continuing education. Most licensed massage therapists likely operate as a small business or are employed by small businesses. Most providers of continuing education are also likely small businesses.

Localities Particularly Affected. The proposed amendments do not disproportionately affect particular localities.

Projected Impact on Employment. The proposed amendments are unlikely to significantly affect total employment. The proposal to allow activities or courses provided by additional organizations to count toward continuing education hours may alter where licensed massage therapists obtain their continuing education. This may moderately affect the distribution of employment across continuing education providers.

Effects on the Use and Value of Private Property. The proposed amendments do not significantly affect the use and value of private property.

Real Estate Development Costs. The proposed amendments do not affect real estate development costs.

Small Businesses:

Definition. Pursuant to § 2.2-4007.04 of the Code of Virginia, small business is defined as "a business entity, including its affiliates, that (i) is independently owned and operated and (ii) employs fewer than 500 full-time employees or has gross annual sales of less than $6 million."

Costs and Other Effects. The proposal to allow activities or courses provided by additional organizations to count toward continuing education hours may lower costs for some massage therapists and their associated small firms.

Alternative Method that Minimizes Adverse Impact. The proposed amendments do not adversely affect small businesses.

Adverse Impacts:

Businesses. The proposed amendments do not adversely affect businesses.

Localities. The proposed amendments do not adversely affect localities.

Other Entities. The proposed amendments do not adversely affect other entities.

____________________________

¹The Code of Virginia authorizes the Board to take disciplinary action for unprofessional conduct. All of the additional provisions can reasonably be considered unprofessional conduct. In fact, all of the additional provisions are specified as unprofessional conduct in the Board's Regulations Governing the Practice of Nursing. The Regulations Governing the Licensure of Massage Therapists states that "unprofessional conduct which shall mean, but shall not be limited to:" followed by the current list. Thus, the five additional provisions can in practice currently be considered unprofessional practice

²Data source: Department of Health Professions

Agency's Response to Economic Impact Analysis: The Board of Nursing concurs with the analysis of the Department of Planning and Budget.

Summary:

The proposed amendments (i) offer additional options for completion of continuing education, (ii) require an attestation of compliance with laws and ethics for initial licensure, (iii) add provisions to the standards of conduct that may subject a licensee to disciplinary action, (iv) clarify eligibility for provisional licensure, and (v) clarify the effect of a lapsed license.

Part II
Requirements for Licensure

18VAC90-50-40. Initial licensure.

A. An applicant seeking initial licensure shall submit a completed application and required fee and verification of meeting the requirements of § 54.1-3029 A of the Code of Virginia as follows:

1. Is at least 18 years old;

2. Has successfully completed a minimum of 500 hours of training from a massage therapy program certified or approved by the State Council of Higher Education for Virginia or an agency in another state, the District of Columbia, or a United States territory that approves educational programs, notwithstanding the provisions of § 23-276.2 23.1-226 of the Code of Virginia;

3. Has passed the Licensing Examination of the Federation of State Massage Therapy Boards, or an exam deemed acceptable to the board;

4. Has not committed any acts or omissions that would be grounds for disciplinary action or denial of certification as set forth in § 54.1-3007 of the Code of Virginia and 18VAC90-50-90; and

5. Has completed a criminal history background check as required by § 54.1-3005.1 of the Code of Virginia.

B. An applicant shall attest that he has read and will comply with laws and regulations and the professional code of ethics relating to massage therapy.

B. C. An applicant who has been licensed or certified in another country and who, in the opinion of the board, meets provides certification of equivalency to the educational requirements in Virginia from a credentialing body acceptable to the board shall take and pass an examination as required in subsection A of this section in order to become licensed.

18VAC90-50-60. Provisional licensure.

A. An eligible candidate who has filed a completed application for licensure in Virginia, including completion of education requirements, may engage in the provisional practice of massage therapy in Virginia while waiting to take the licensing examination for a period not to exceed 90 days upon from the date on the written authorization from the board. A provisional license may be issued for one 90-day period and may not be renewed.

B. The designation of "massage therapist" or "licensed massage therapist" shall not be used by the applicant during the 90 days of provisional licensure.

C. An applicant who fails the licensing examination shall have his provisional licensure withdrawn upon the receipt of the examination results and shall not be eligible for licensure until he passes such examination.

Part III
Renewal and Reinstatement

18VAC90-50-70. Renewal of licensure.

A. Licensees born in even-numbered years shall renew their licenses by the last day of the birth month in even-numbered years. Licensees born in odd-numbered years shall renew their licenses by the last day of the birth month in odd-numbered years.

B. The licensee shall complete the renewal form and submit it with the required fee and attest that he has complied with continuing competency requirements of 18VAC90-50-75.

C. Failure to receive the application for renewal shall not relieve the licensed massage therapist of the responsibility for renewing the license by the expiration date.

D. The license shall automatically lapse by the last day of the birth month if not renewed, and the practice of massage therapy or use of the title "massage therapist" or "licensed massage therapist" is prohibited.

18VAC90-50-75. Continuing competency requirements.

A. In order to renew a license biennially, a licensed massage therapist shall:

1. Hold current certification by the NCBTMB; or

2. Complete at least 24 hours of continuing education or learning activities with at least one hour in professional ethics. Hours chosen shall be those that enhance and expand the skills and knowledge related to the clinical practice of massage therapy and may be distributed as follows:

a. A minimum of 12 of the 24 hours shall be in activities or courses provided by an NCBTMB-approved provider one of the following providers and may include seminars, workshops, home study courses, and continuing education courses:

(1) NCBTMB;

(2) Federation of State Massage Therapy Boards;

(3) American Massage Therapy Association;

(4) Associated Bodywork and Massage Professionals;

(5) Commission on Massage Therapy Accreditation;

(6) A nationally or regionally accredited school or program of massage therapy; or

(7) A school of massage therapy approved by the State Council of Higher Education for Virginia.

b. No more than 12 of the 24 hours may be activities or courses that may include consultation, independent reading or research, preparation for a presentation, a course in cardiopulmonary resuscitation, or other such experiences that promote continued learning.

B. A massage therapist shall be exempt from the continuing competency requirements for the first biennial renewal following the date of initial licensure in Virginia.

C. The massage therapist shall retain in his records the completed form with all supporting documentation for a period of four years following the renewal of an active license.

D. The board shall periodically conduct a random audit of licensees to determine compliance. The persons selected for the audit shall provide evidence of current NCBTMB certification or the completed continued competency form provided by the board and all supporting documentation within 30 days of receiving notification of the audit.

E. Failure to comply with these requirements may subject the massage therapist to disciplinary action by the board.

F. The board may grant an extension of the deadline for continuing competency requirements, for up to one year, for good cause shown upon a written request from the licensee prior to the renewal date.

G. The board may grant an exemption for all or part of the requirements for circumstances beyond the control of the licensee, such as temporary disability, mandatory military service, or officially declared disasters.

Part IV
Disciplinary Provisions

18VAC90-50-90. Disciplinary provisions.

The board has the authority to deny, revoke, or suspend a license issued by it or to otherwise discipline a licensee upon proof that the practitioner has violated any of the provisions of § 54.1-3007 of the Code of Virginia or of this chapter or has engaged in the following:

1. Fraud or deceit, which shall mean, but shall not be limited to:

a. Filing false credentials;

b. Falsely representing facts on an application for initial licensure, or reinstatement or renewal of a license; or

c. Misrepresenting one's qualifications including scope of practice.

2. Unprofessional conduct, which shall mean, but shall not be limited to:

a. Performing acts which that constitute the practice of any other health care profession for which a license or a certificate is required or acts which that are beyond the limits of the practice of massage therapy as defined in § 54.1-3000 of the Code of Virginia;

b. Assuming duties and responsibilities within the practice of massage therapy without adequate training or when competency has not been maintained;

c. Failing to acknowledge the limitations of and contraindications for massage and bodywork or failing to refer patients to appropriate health care professionals when indicated;

d. Entering into a relationship with a patient or client that constitutes a professional boundary violation in which the massage therapist uses his professional position to take advantage of the vulnerability of a patient, a client, or his family, to include but not be limited to actions that result in personal gain at the expense of the patient or client, a nontherapeutic personal involvement, or sexual conduct with a patient or client;

e. Falsifying or otherwise altering patient or employer records;

f. Violating the privacy of patients or the confidentiality of patient information unless required to do so by law;

g. Employing or assigning unqualified persons to practice under the title of "massage therapist" or "licensed massage therapist";

h. Engaging in any material misrepresentation in the course of one's practice as a massage therapist; or

i. Obtaining money or property of a patient or client by fraud, misrepresentation, or duress;

j. Violating state laws relating to the privacy of patient information, including § 32.1-127.1:03 of the Code of Virginia;

k. Providing false information to staff or board members in the course of an investigation or proceeding;

l. Failing to report evidence of child abuse or neglect as required by § 63.2-1509 of the Code of Virginia or elder abuse or neglect as required by § 63.2-1606 of the Code of Virginia;

m. Violating any provision of this chapter; or

n. Failing to practice in a manner consistent with the code of ethics of the NCBTMB, as incorporated by reference into this chapter with the exception of the requirement to follow all policies, procedures, guidelines, regulations, codes, and requirements promulgated by the NCBTMB.