Title of Regulation: 18VAC90-50. Regulations Governing the Certification of Massage Therapists (amending 18VAC90-50-10, 18VAC90-50-40, 18VAC90-50-75, 18VAC90-50-80, 18VAC90-50-90).

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

Public Hearing Information: No public hearings are scheduled.

Public Comments: Public comments may be submitted until 5 p.m. on November 26, 2008.

Effective Date: December 11, 2008.

Agency Contact: Jay P. Douglas, R.N., Executive Director, Board of Nursing, 9960 Mayland Drive, Suite 300, Richmond, VA 23233-1463, telephone (804) 367-4515, FAX (804) 527-4455, or email jay.douglas@dhp.virginia.gov.

Basis: Section 54.1-2400 of the Code of Virginia establishes the general powers and duties of health regulatory boards including the responsibility to promulgate regulations, establish renewal schedules and to levy fees.

Purpose: The purpose of the proposed regulatory action is to make regulations consistent with current approval of educational programs, to encourage massage therapists to be trained in CPR by accepting those hours for CE credit, to ensure that a massage therapist whose certification has been suspended or revoked has met continuing competency requirements for reinstatement, and to further define the prohibition on engaging in any sexual conduct involving a patient. Regulations that more clearer delineate the prohibition against a professional boundary violations will help to protect patients/clients who may be subject to inappropriate behaviors by massage therapists.

Rationale for Using Fast-Track Process: The board has determined that a fast-track process is appropriate because there is no controversy with this action. Massage therapists were included in the periodic review of the regulation and concurred with the changes. Amendments will primarily clarify current provisions and will not establish any new requirements.

Substance: The only amendment that may be considered substantive would be the expanded prohibition against a boundary violation. Currently the regulation makes it unprofessional conduct to initiate or engage in any sexual conduct involving a patient. Consistent with other regulations under the Board of Nursing, the amended regulation makes it unprofessional to enter into a relationship that constitutes a professional boundary violation to include taking advantage of the vulnerability of a patient or sexual conduct with a patient or his family.

Issues: The advantage to the public of the amendment on unprofessional conduct may be that more explicit language about professional boundary violations may help a massage therapist understand and avoid actions that would take advantage of a client or patient’s vulnerability, including, but not limited to, sexual conduct. There are no disadvantages to the agency or the Commonwealth. There is no other pertinent matter of interest related to this action.

The Department of Planning and Budget's Economic Impact Analysis:

Summary of the Proposed Amendments to Regulation. The Board of Nursing (Board) proposes to: 1) reduce the requirement for continuing education (CE) from 25 hours every two years to 24 hours, 2) add cardiopulmonary resuscitation (CPR) as a qualifying course for CE, 3) amend language describing what types of relationships with clients constitute grounds for disciplinary action, 4) add clarifying language, and 5) repeal obsolete language.

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

Estimated Economic Impact. Under the current regulations to renew certification as a massage therapist a practitioner must either hold current certification by the National Certification Board for Therapeutic Massage & Bodywork (NCBTMB) or obtain 25 hours of continuing education (CE) each two-year certification period. “Hours chosen shall be those that enhance and expand the skills and knowledge related to the clinical practice of massage therapy…” At minimum half of those hours must be in activities or courses provided by an NCBTMB-approved provider and may include seminars, workshops, home study courses, and continuing education courses. The remaining hours can be from activities or courses that may include consultation, independent reading or research, preparation for a presentation or other such experiences that promote continued learning. Also, at least one of the hours must be in professional ethics.

NCBTMB requires 48 hours of CE in order to be re-certified every four years. In order to be consistent with NCBTMB the Board proposes to reduce the CE requirement to 24 hours each biennium. This modest change should not significantly affect massage therapists continuing competence and may provide a small cost savings.

The Board also proposes to specify that a course in CPR qualifies for CE credit. According to the Department of Health Professions (Department), CPR courses would most likely not qualify under the current regulations. The ability to properly administer CPR clearly has value in that it can potentially save lives. CPR may not be as directly related to maintaining and improving the skills and knowledge related to performing massage therapy as other qualifying courses and activities, but given that practitioners must still satisfy a significant number of CE hours that are more directly related coupled with the significant benefit of CPR, this proposal likely produces a net benefit.

The current regulations specifically list “Initiating or engaging in any sexual conduct involving a patient” as grounds for discipline. The Board proposes to replace that language with

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 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.

According to the Department the proposed language is intended to still include initiating or engaging in any sexual conduct involving a patient as grounds for discipline. In disciplining a practitioner the Board could potentially cite Code of Virginia Section § 54.1-3007 for the additional grounds listed in the proposed regulatory language. Including this language in the regulations may make this information more visible to practitioners though. Thus, including it may produce some benefit and will not produce any cost.

Businesses and Entities Affected. The proposed amendments affect the 4866 certified massage therapists in the Commonwealth. Most are self-employed or work in small business practices.¹

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

Projected Impact on Employment. The proposed amendments are unlikely to significantly affect employment.

Effects on the Use and Value of Private Property. The proposed amendments may encourage more massage therapists to take a course in CPR. Private providers of CPR may encounter a modest increase in demand for their services.

Small Businesses: Costs and Other Effects. The proposed amendments are unlikely to significantly affect small businesses.

Small Businesses: Alternative Method that Minimizes Adverse Impact. The proposed amendments are unlikely to significantly affect small businesses.

Real Estate Development Costs. The proposed amendments are unlikely to significantly affect real estate development costs.

Legal Mandate. The Department of Planning and Budget (DPB) has analyzed the economic impact of this proposed regulation in accordance with § 2.2-4007.04 of the Administrative Process Act and Executive Order Number 36 (06). Section 2.2-4007.04 requires that such economic impact analyses include, but need not be limited to, the projected number of businesses or other entities to whom the regulation would apply, the identity of any localities and types of businesses or other entities particularly affected, the projected number of persons and employment positions to be affected, the projected costs to affected businesses or entities to implement or comply with the regulation, and the impact on the use and value of private property. Further, if the proposed regulation has adverse effect on small businesses, § 2.2-4007.04 requires that such economic impact analyses include (i) an identification and estimate of the number of small businesses subject to the regulation; (ii) the projected reporting, recordkeeping, and other administrative costs required for small businesses to comply with the regulation, including the type of professional skills necessary for preparing required reports and other documents; (iii) a statement of the probable effect of the regulation on affected small businesses; and (iv) a description of any less intrusive or less costly alternative methods of achieving the purpose of the regulation. The analysis presented above represents DPB’s best estimate of these economic impacts.

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¹ Source: Department of Health Professions

Agency's Response to the Department of Planning and Budget's Economic Impact Analysis: The Board of Nursing concurs with the analysis of the Department of Planning and Budget on proposed amended regulations for 18VAC90-50, Regulations Governing the Certification of Massage Therapists.

Summary:

The proposed amendments update and clarify the regulations as a result of a periodic review. There is a reduction in the hours of continuing education (CE) required for biennial renewal of certification from 25 to 24 and inclusion of a course in cardiopulmonary resuscitation (CPR) as acceptable for CE credit. The only amendment that may be considered substantive would be the expanded prohibition against a boundary violation, rather than the somewhat more narrow prohibition against sexual contact.

Part I
General Provisions

18VAC90-50-10. Definitions.

The following words and terms when used in this chapter shall have the following meanings unless the context clearly indicates otherwise:

"Board" means the Board of Nursing.

"Category A" means continuing education courses or programs offered by an organization or individual approved as a provider by the NCBTMB.

"Category B" means continuing education courses, programs or experiences that are related to the clinical practice of massage therapy but which may not be offered by a provider approved by the NCBTMB.

"Certified massage therapist" means a person who meets the qualifications specified in this chapter and who is currently certified by the board. Only someone who is certified by the board as a massage therapist may use any designation tending to imply that he is a certified massage therapist or massage therapist.

"Massage therapy" means the treatment of soft tissues for therapeutic purposes by the application of massage and bodywork techniques based on the manipulation or application of pressure to the muscular structure or soft tissues of the human body. The terms "massage therapy" and "therapeutic massage" do not include the diagnosis or treatment of illness or disease or any service or procedure for which a license to practice medicine, nursing, chiropractic therapy, physical therapy, occupational therapy, acupuncture, or podiatry is required by law.

"NCBTMB" means the National Certification Board for Therapeutic Massage and Bodywork.

Part II
Requirements for Certification

18VAC90-50-40. Initial certification.

A. An applicant seeking initial certification 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, having received programmatic approval from the Virginia Board of Education, Division of Proprietary Schools, or been certified or approved by the Virginia Board of Education, Division of Proprietary Schools; certified or approved by the State Council of Higher Education or an agency in another state, the District of Columbia or a United States territory that approves educational programs, notwithstanding the provisions of § 22.1-320 of the Code of Virginia;

3. Has passed the National Certification Exam for Therapeutic Massage and Bodywork, the National Certification Exam for Therapeutic Massage, or an exam deemed acceptable to the board leading to national certification; and

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.

B. No application for certification under provisions of § 54.1-3029 B of the Code of Virginia shall be considered unless submitted prior to July 1, 1998.

C. An applicant who has been licensed or certified in another country and who, in the opinion of the board, meets the educational requirements shall take and pass the national certifying examination as required in subsection A of this section in order to become certified.

18VAC90-50-75. Continuing competency requirements.

A. In order to renew a certificate biennially on and after January 15, 2005, a certified massage therapist shall:

1. Hold current certification by the NCBTMB; or

2. Complete at least 25 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 12.5 12 of the 25 24 hours shall be in Category A activities or courses provided by an NCBTMB-approved provider and may include seminars, workshops, home study courses, and continuing education courses.

b. No more than 12.5 12 of the 25 24 hours may be Category B 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 certification 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 certificate.

D. The board shall periodically conduct a random audit of certificate holders 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 certificate holder 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 certificate holder, such as temporary disability, mandatory military service, or officially declared disasters.

18VAC90-50-80. Reinstatement of certificates.

A. A massage therapist whose certificate has lapsed may reinstate his certification within one renewal period by attesting to completion of continuing competency requirements for the period and payment of the current renewal fee and the late renewal fee.

B. A massage therapist whose certificate has lapsed for more than one renewal period shall file a reinstatement application, attest to completion of continuing competency requirements for the period in which the certificate has been lapsed, not to exceed four years, and pay the reinstatement fee.

C. A massage therapist whose certificate has been suspended or revoked may apply for reinstatement by filing a reinstatement application meeting the requirements of subsection B of this section, and paying the fee for reinstatement after suspension or revocation.

D. The board may require evidence that the massage therapist is prepared to resume practice in a competent manner.

Part IV
Disciplinary Provisions

18VAC90-50-90. Disciplinary provisions.

The board has the authority to deny, revoke or suspend a certificate issued by it or to otherwise discipline a certificate holder 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 certification, or reinstatement or renewal of a certificate; 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 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. Initiating or engaging in any sexual conduct involving a patient 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 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 "certified 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.