Title of Regulation: 18VAC90-50. Regulations Governing the Certification of Massage Therapists (amending 18VAC90-50-20, 18VAC90-50-40, 18VAC90-50-60, 18VAC90-50-70).

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

Public Hearing Information: No public hearings are scheduled.

Public Comment Deadline: July 31, 2013.

Effective Date: August 15, 2013.

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.

Purpose: The purpose of the amendments is to update regulatory language and clarify the process for provisional practice. Elimination of unnecessary or outdated provisions and inclusion of language consistent with current practices will facilitate submission of documentation for certification. The goal is to enable qualified applicants to obtain certification that provides the public with some assurance of competency and accountability in the delivery of massage therapy services.

Rationale for Using Fast-Track Process: The amendments make the regulations less restrictive and are not controversial. They are consistent with recommendations for regulatory reform received during the comment period on periodic review from the Virginia Chapter of the American Massage Therapy Association.

Substance: Regulations are amended to (i) facilitate electronic submission of documents and forms, (ii) allow the board to accept a certificate of naturalization as evidence of a name change, and (iii) clarify when an applicant may engage in the provisional practice of massage therapy.

Issues: The primary advantages to the public are facilitation of applications and renewals and elimination of confusing, outdated language in the regulations. There are no disadvantages to the public. The advantage to the Commonwealth is clarity in the regulations, which reduces queries to board staff.

Small Business Impact Report of Findings: This regulatory action serves as the report of findings of the regulatory review pursuant to § 2.2-4007.1 of the Code of Virginia.

Department of Planning and Budget's Economic Impact Analysis:

Summary of the Proposed Amendments to Regulation. The Board of Nursing (Board) proposes to amend its regulations that set the rules for certification of massage therapists to update language and clarify the process for provisional practice.

Result of Analysis. Benefits likely outweigh costs for these proposed regulations.

Estimated Economic Impact. Current regulations require that applicants or certificate holders who move submit a change of address in writing within 30 days of the change. Current regulations also require applicants or certificate holders whose names have changed to submit either a copy of a marriage certificate or a court order for name change. The Board proposes to allow changes of address to be submitted electronically and also to allow certificates of naturalization as proof of name change. Both of these changes will benefit affected individuals by allowing them greater flexibility in providing documentation to the Board. No entity is likely to incur any costs on account of these changes.

Current regulations allow eligible candidates who have filed an application for certification in Virginia to practice massage therapy for not more than 90 days between completion of their education program and receipt of the results of their certification exam (and the issuance of their certification). The Board proposes to add language that clarifies that the application filed must be complete and that provisional practice must be authorized by the Board. The Department of Health Professions (DHP) reports that the proposed new language will not change current practice as the Board already requires authorization for provisional practice. Consequently, no affected entity is likely to incur any costs on account of these proposed changes. To the extent that the requirements for provisional practice might have been hard for some individuals to understand, these clarifying changes will provide a benefit.

Businesses and Entities Affected. DHP reports that there are currently 6,345 individuals certified as massage therapists in the Commonwealth. All of these entities, as well as any individuals who seek certification in the future, will be affected by these proposed regulations.

Localities Particularly Affected. No localities will be particularly affected by these proposed regulations.

Projected Impact on Employment. This proposed regulatory action is unlikely to have any effect on employment in the Commonwealth.

Effects on the Use and Value of Private Property. These proposed regulatory changes are unlikely to affect the use or value of private property in the Commonwealth.

Small Businesses: Costs and Other Effects. No small business is likely to incur costs on account of this proposed change.

Small Businesses: Alternative Method that Minimizes Adverse Impact. No small business is likely to incur costs on account of this proposed change.

Real Estate Development Costs. This regulatory action will likely have no effect on real estate development costs in the Commonwealth.

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 14 (10). 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.

Agency's Response to 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:

This regulatory action is initiated in response to the Governor's Regulatory Reform Initiative. The amendments (i) facilitate electronic submission of documents and forms, (ii) allow the board to accept a certificate of naturalization as evidence of a name change, and (iii) clarify when an applicant may engage in the provisional practice of massage therapy.

18VAC90-50-20. Operational requirements.

A. Requirements for current mailing address.

1. Each applicant or certificate holder shall maintain a current address of record with the board. Any change in the address of record or the public address, if different from the address of record, shall be submitted electronically or in writing to the board within 30 days of such change.

2. All required notices mailed by the board to any applicant or certificate holder shall be validly given when mailed to the latest address of record on file with the board.

B. A certificate holder who has had a change of name shall submit as legal proof to the board a copy of the marriage certificate, a certificate of naturalization, or a court order evidencing the change. A duplicate certificate shall be issued by the board upon receipt of such evidence and the required fee.

C. Each certified massage therapist shall conspicuously post his current Virginia certificate in a public area at his practice location.

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 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, the Licensing Examination of the Federation of State Massage Therapy Boards, or an exam deemed acceptable to the board; 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 an examination as required in subsection A of this section in order to become certified.

18VAC90-50-60. Provisional certification.

A. An eligible candidate who has filed an a completed application for certification in Virginia may engage in the provisional practice of massage therapy in Virginia for a period not to exceed 90 days between completion of the education program and the receipt of the results of the candidate's first certifying examination upon written authorization from the board.

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

C. An applicant who fails the certifying examination shall have his provisional certification withdrawn upon the receipt of the examination results and shall not be eligible for certification until he passes such examination and becomes nationally certified.

Part III
Renewal and Reinstatement

18VAC90-50-70. Renewal of certification.

A. Certificate holders born in even-numbered years shall renew their certificates by the last day of the birth month in even-numbered years. Certificate holders born in odd-numbered years shall renew their certificates by the last day of the birth month in odd-numbered years.

B. The certificate holder shall complete the application renewal form and return 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 certified massage therapist of the responsibility for renewing the certificate by the expiration date.

D. The certificate shall automatically lapse by the last day of the birth month if not renewed; and use of the title "massage therapist" or "certified massage therapist" is prohibited.