SENATE DOCKET, NO. 1840        FILED ON: 1/18/2019

SENATE  .  .  .  .  .  .  .  .  .  .  .  .  .  .  No. 168

The Commonwealth of Massachusetts

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PRESENTED BY:

Mark C. Montigny

_________________

To the Honorable Senate and House of Representatives of the Commonwealth of Massachusetts in General
Court assembled:

The undersigned legislators and/or citizens respectfully petition for the adoption of the accompanying bill:

An Act regulating bodyworks.

_______________

PETITION OF:

SENATE DOCKET, NO. 1840        FILED ON: 1/18/2019

SENATE  .  .  .  .  .  .  .  .  .  .  .  .  .  .  No. 168

[SIMILAR MATTER FILED IN PREVIOUS SESSION
SEE SENATE, NO. 907 OF 2017-2018.]

The Commonwealth of Massachusetts

_______________

In the One Hundred and Ninety-First General Court
(2019-2020)

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An Act regulating bodyworks.

Be it enacted by the Senate and House of Representatives in General Court assembled, and by the authority of the same, as follows:
 

SECTION 1. Section 98 of chapter 13 of the General Laws, as appearing in the 2016 Official Edition, is hereby amended by striking out subsection (a) and inserting in place thereof the following subsection:-

(a) There shall be within the division of professional licensure a board of registration of massage therapy and bodyworks. The board shall consist of 7 members who shall be appointed by the governor for terms of 3 years, 3 of whom shall be licensed massage therapists who have been actively engaged in the practice of massage therapy in the commonwealth for not less than 5 years immediately before their appointments, 2 of whom shall be licensed bodywork therapists or bodyworkers who have been actively engaged in the practice of bodyworks in the commonwealth for not less than 5 years immediately before their appointments;  1 of whom shall be a law enforcement representative whose area of focus is human trafficking and 1 of whom shall be a consumer who is familiar with the massage therapy or bodyworks therapy fields. The members shall be residents of the commonwealth and shall be subject to chapter 268A.

SECTION 2. Said chapter 13 is hereby further amended by striking out section 99, as so appearing, and inserting in place thereof the following section:-

Section 99. (a) The board shall: (i) administer and enforce sections 227 to 235, inclusive, of chapter 112; (ii) adopt rules and regulations governing the licensure of massage therapists and bodyworks therapists, the practice of massage therapy, bodyworks and the operation of massage schools and bodyworks schools to promote public health, welfare and safety; (iii) establish standards of professional and ethical conduct; (iv) establish standards for continuing education reflecting acceptable national standards; and (v) investigate complaints, conduct inspections, review billing and treatment records and set and administer penalties as defined in sections 61 to 65E, inclusive, and sections 232 to 235, inclusive, of said chapter 112 for fraudulent, deceptive or professionally incompetent and unsafe practices and for violations of rules and regulations promulgated by the board.

(b) The board shall make available to the public a list of licensed massage therapists, bodyworks therapists and bodyworkers. The board shall establish by regulation a code of ethics.

(c) The board shall adopt rules and regulations to differentiate among varying scopes of practice within bodywork therapy, as defined by section 227 of chapter 112, and appropriate licensure restrictions to ensure that a bodyworks therapist operates within the authorized scope of practice for which the bodyworks therapist has demonstrated satisfactory competency to the board. The board shall host at least 1 public session to solicit information from bodywork therapists to inform the rules and regulations.

SECTION 3. Section 227 of chapter 112 of the General Laws, as so appearing, is hereby amended by inserting after the word “therapy”, in line 4, the following words:- and bodyworks.

SECTION 4. Said section 227 of said chapter 112, as so appearing, is hereby further amended by inserting after the definition of “Board”, the following 2 definitions:-

“Bodywork”, “bodyworks” or “bodywork therapy”, the practice of a person who uses touch, words or directed movement to deepen awareness of patterns of movement in the body, or the affectation of the human energy system or acupoints or Qi meridians of the human body while engaged within the scope of practice of a profession with established standards and ethics; provided, however, that such services shall not be designated or implied to be massage or massage therapy; provided further, that “bodywork”, “bodyworks” and “bodywork therapy” shall include, but not be limited to: the Feldenkrais Method; Reflexology; the Trager Approach; Ayurvedic Therapies, Rolf Structural Integration, Polarity or Polarity Therapy; Polarity Therapy Bodywork; Asian Bodywork Therapy that does not constitute massage as defined in this chapter; Acupressure; Jin Shin Do; Qi Gong; Tui Na; Shiatsu; Body/Mind Centering; and Reiki; and provided further, that “bodywork”, “bodyworks” and “bodywork therapy” shall not include diagnoses, the prescribing of drugs or medicines, spinal or other joint manipulations or any services or procedures for which a license to practice medicine, acupuncture, chiropractic, occupational therapy, physical therapy or podiatry is required by law. 

“Bodyworker”, “bodywork therapist” or “bodyworks therapist”, a person licensed by the board who instructs or administers bodyworks or bodyworks therapy for compensation.

SECTION 5. Said section 227 of said chapter 112, as so appearing, is hereby further amended by striking out the definitions of “Licensed massage school” and “Licensed massage therapy salon” and inserting in place thereof the following 2 definitions:-

“Licensed massage school” or “licensed bodywork school”, a facility that is licensed by the office of private occupational school education pursuant to section 263 or any other state or federal agency or department after meeting minimum standards for training, facilities, instructors and curriculum as determined by the board in accordance with sections 228 to 235, inclusive.

“Licensed massage therapy facility” or “licensed bodywork therapy facility”, a place, office, clinic or establishment licensed by the board to offer massage or bodywork services.

SECTION 6. Said chapter 112 is hereby further amended by striking out section 228, as so appearing, and inserting in place thereof the following section:-

Section 228. (a) A person shall not hold the person’s self out to others as a massage therapist, bodywork therapist or bodyworker or practice massage, massage therapy, bodyworks or bodyworks therapy unless the person holds a valid license issued in accordance with this chapter. A person licensed to practice massage or massage therapy or bodyworks or bodyworks therapy shall not perform: (i) diagnosis of illness or disease; (ii) high velocity, low-amplitude thrust applied to a joint; (iii) electrical stimulation; (iv) application of ultrasound; (v) exercise and prescription of medicines.

(b) The following practitioners shall be exempt from the licensure requirements of this section:

(i) a person who: (A) is otherwise licensed, certified or registered under the General Laws; (B) is performing services within the person’s authorized scope of practice; and               (C) does not hold the person’s self out to be a massage therapist, bodywork therapist or bodyworker;

(ii) a person who is duly licensed, registered or certified in another state, territory, the District of Columbia or a foreign country when temporarily called into the               commonwealth to teach a course related to massage therapy or bodyworks therapy or to consult with a person licensed as a massage therapist or bodywork therapist or               bodyworker under this chapter;

(iii) a student of massage therapy or bodyworks therapy who is enrolled in a licensed massage or bodywork school program for massage or bodywork and is performing work as a required component of his course of study at such school; provided, however, that the student shall not hold the student’s self out as a licensed massage therapist or bodywork therapist under this chapter and shall not receive compensation for the work;

(iv) a person giving massage or bodywork therapy to a member of that person’s immediate family for which the person received no compensation;

(v) a person, duly licensed, registered or certified in another state, territory, the District of Columbia or a foreign country who is incidentally in the commonwealth to provide               service as part of an emergency response team working in conjunction with disaster relief               officials; and

(vi) a person giving massage or bodywork in a sporting, health or other event, whether on               a single day or on consecutive days, that is non-compensatory and under the supervision of a licensed massage therapist, bodywork therapist or bodyworker.

SECTION 7. Said chapter 112 is hereby further amended by striking out section 229, as most recently amended by section 74 of chapter 6 of the acts of 2017, and inserting in place thereof the following section:-

Section 229. (a) A person who desires to engage in the practice of massage therapy shall apply on a form furnished by the board that shall be signed and sworn to by the applicant. Each application shall be accompanied by payment of the fee prescribed by the executive office for administration and finance pursuant to section 3B of chapter 7. Upon submission of a completed application to the board and the payment of the required fee, the board may issue a license to practice as a massage therapist to an applicant who: (i) has obtained a high school diploma or its equivalent; (ii) is 18 years of age or older; (iii) has submitted 2 professional letters of reference, with at least 1 being from an employer or professional in the massage therapy or medical field; (iv) is of good moral character, as determined by the discretion of the board; (v) has successfully completed a course of study consisting of not less than 500 classroom hours or an equivalent number of credit hours of supervised instruction at a licensed massage school; (vi) has not been convicted in any jurisdiction of sexually-related crime or a crime involving moral turpitude for the 10 years immediately before the date of application; (vii) provides proof of professional liability coverage; and (viii) demonstrates the professional competence that may be required by the board's regulations.

(b) A person who desires to engage in the practice of bodyworks shall apply on a form furnished by the board that shall be signed and sworn to by the applicant. Each application shall be accompanied by payment of the fee prescribed by the executive office for administration and finance pursuant to section 3B of chapter 7. Upon submission of a completed application to the board and the payment of the required fee, the board may issue a license to practice as a bodyworks therapist to an applicant who: (i) has obtained a high school diploma or its equivalent; (ii) is 18 years of age or older; (iii) has submitted 2 professional letters of reference, with at least 1 being from an employer or professional in the bodywork or medical field; (iv) is of good moral character, as determined by the discretion of the board; (v) has successfully completed a course of study or supervised instruction at a licensed bodyworks school that has been determined appropriate by the board; (vi) has not been convicted in any jurisdiction of sexually-related crime or a crime involving moral turpitude for the 10 years immediately before the date of application; (vii) provides proof of professional liability coverage; and (viii) demonstrates the professional competence that may be required by the board's regulations.

(c) The commissioner of the division of professional licensure shall determine the renewal cycle and renewal period for massage therapy and bodyworks therapy licenses. Each person licensed in accordance with these sections shall apply to the board for renewal of the person’s license not later than the expiration date, as determined by the director, unless the license was revoked, suspended or canceled earlier by the board as a result of a disciplinary proceeding instituted pursuant to this chapter. Applications for renewal shall be made on forms approved by the board and accompanied by payment of a renewal fee, as prescribed by the executive office for administration and finance pursuant to section 3B of chapter 7; provided, however, that the fee shall not be less than $100.

(d) As a condition of  license renewal, a licensed massage therapist or licensed bodyworks therapist or bodyworker shall furnish the board with satisfactory proof that the licensee: (i) has not been convicted in any jurisdiction of a sexually-related crime or a crime involving moral turpitude since the original application for licensure; (ii) has professional liability coverage; and (iii) has completed the continuing education requirements that reflect acceptable national standards and have been reviewed and approved by the board.

Upon satisfactory compliance with the licensing requirements for massage therapists, bodyworks therapists or bodyworkers and successful completion of the continuing education requirements, the board shall issue a renewal license showing that the holder is entitled to be licensed for the renewal period. The board may provide for the late renewal of a license that has lapsed and may require payment of a late fee. All licensing and application fees and administrative fines collected pursuant to sections 227 to 235, inclusive, shall be deposited into the Division of Professional Licensure Trust Fund established in section 35V of chapter 10.

SECTION 8. Section 230 of said chapter 112, as appearing in the 2016 Official Edition, is hereby amended by inserting after the word “therapists”, in line 2, the following words:- , bodywork therapists or bodyworkers.

SECTION 9. Said chapter 112 is hereby further amended by striking out section 231, as so appearing, and inserting in place thereof the following section:-             

Section 231. The board may grant a license to an applicant for a bodywork therapist license who: (i) (A) provides documentation, acceptable to the board, that demonstrates that the applicant has provided an appropriate number of hours of bodyworks therapy, as determined by the board, to members of the public for compensation; (B) has been authorized to practice bodywork by the municipal board of health within the commonwealth; provided, however, that the authorization shall be valid not more than 2 years after the date of application; or (C) provides proof of the successful passage of a board approved examination administered by a national organizational or board accredited by the National Commission of Certifying Agencies and approved by the National Organization for Competency Assurance; (ii) submits a completed application and pays the necessary fee prescribed by the executive office for administration and finance pursuant to section 3B of chapter 7; (iii) is of good moral character, as determined by the discretion of the board; and (iv) provides proof of professional liability coverage.

SECTION 10. Said chapter 112 is hereby further amended by striking out section 232, as so appearing, and inserting in place thereof the following section:-

Section 232. (a) The board shall conduct inspections and investigate all complaints filed that relate to the proper practice of massage therapy or bodyworks therapy, the operation of a massage therapy or bodywork facility and any violation of sections 227 to 235, inclusive, or a rule or regulation of the board. Such a complaint may be brought by any person or the board may, on its own, initiate a complaint.

(b) The board shall be under the supervision of the division of professional licensure and shall have all the authority conferred under sections 61 to 65E, inclusive. For the purposes of this section and sections 61 to 65E, inclusive, conduct that places into question the holder's competence to practice massage therapy or bodywork therapy or operate a massage or bodyworks facility shall include, but not be limited to: (i) committing fraud or misrepresentation in obtaining a license; (ii) criminal conduct that the board determines to be of such a nature as to render the person unfit to practice as a licensed massage therapist, bodyworks therapist or bodyworker or to operate a licensed massage therapy or bodywork facility, as evidenced by criminal proceedings that resulted in a conviction, guilty plea or plea of nolo contendere or an admission of sufficient facts; (iii) violating any rule or regulation of the board; (iv) failing to cooperate with the board or its agents in the conduct of an inspection or investigation; (v) failing to fulfill any continuing education requirements set out by the board; (vi) violating an ethical standard that the board determines to be of such a nature as to render the person unfit to practice as a massage therapist or bodyworks therapist or bodyworker or to operate a licensed massage therapy or bodywork facility, including, but not limited to: (A) inappropriate conduct or touching in the practice of massage therapy or bodyworks therapy; (B) offering medical opinion or diagnosis; or (C) negligence in the course of professional practice.

The board may issue an order to a licensee directing the licensee to cease and desist from unethical or unprofessional conduct if the board finds, after the opportunity for a hearing, that the licensee has engaged in such conduct.

(c) A massage therapist, bodyworks therapist or bodyworker whose license to practice is suspended for more than 1 year for professional misconduct with regard to insurance claims shall not own, operate, practice in or be employed by another massage therapist, bodywork therapist or a physical therapist or chiropractor, in any capacity, until the license is reinstated by the board. A massage therapist or bodywork therapist whose license is suspended for a second offense with regard to insurance claims shall have the license permanently revoked and may not own, operate, practice in or be employed by a business that provides massage therapy, bodywork therapy, physical therapy or chiropractic care.

(d) Nothing in this section shall limit the board's authority to impose sanctions by consent agreements that are considered reasonable and appropriate by the board. A person aggrieved by a disciplinary action taken by the board pursuant to this section or section 235 may, pursuant to section 64, file a petition for judicial review.

SECTION 11. Said chapter 112 is hereby further amended by striking out section 233, as most recently amended by section 75 of chapter 6 of the acts of 2017, and inserting in place thereof the following section:-

Section 233. The board shall establish standards to be met by the massage therapy or bodywork schools. The board shall approve the massage therapy or bodywork school curriculum, training, facilities and instructors. A school or entity shall not teach massage therapy or bodywork without prior approval by the board unless licensed by the division of professional licensure pursuant section 263 or other state or federal agency or department.

SECTION 12. Section 234 of said chapter 112, as appearing in the 2016 Official Edition, is hereby amended by inserting after the words “massage therapy”, in line 2, the following words:- and bodyworks.

SECTION 13. Section 235 of said chapter 112, as so appearing, is hereby amended by inserting after the word “means”, in line 25, the following words:- or through online advertising means or forums.

SECTION 14. Said section 235 of said chapter 112, as so appearing, is hereby further amended by striking out subsection (b) and inserting in place thereof the following 2 subsections:-

(b) Only a person duly licensed under this chapter shall be designated as a “bodywork therapist” and entitled to use the terms “bodywork”, “bodyworks”, “bodyworker”, “bodywork therapy”, “bodywork therapist” and “bodyworks therapist” when advertising or printing promotional material. A person who uses such a term in the person’s professional title without being authorized to do so shall be subject to discipline by the board. A person who: (i) knowingly aids and abets another to use such a term when the person is not authorized to do so; or (ii) knowingly employs a person not authorized to use such a term in the course of the employment, shall be subject to a disciplinary proceeding before the board.

It shall be a violation of this chapter for a person to advertise: (i) as a bodywork therapist, bodyworker or bodywork facility unless the person has an employee who holds a valid license under this chapter; (ii) by combining advertising for a licensed bodywork therapy service with escort or dating services; (iii) as performing bodywork in a form in which the person has not received training or of a type that is not licensed or otherwise recognized by law or administrative rule; or (iv) by using any term other than “bodywork”, “bodyworks”, “bodyworker”, “bodywork therapy”, “bodywork therapist” or “bodyworks therapist” to refer to the service.

As used in this section, the term “advertise” shall include, but not be limited to: (i) the issuance of a card, sign or device to another; (ii) the causing, permitting or allowing of a sign or marking on or in a building, vehicle or structure; (iii) advertising in a newspaper or magazine, on television or through electronic means or online advertising means or forums; (iv) a listing or advertising in a directory under a classification or heading that includes the word “bodywork”, “bodyworks”, “bodyworker”, “bodywork therapy”, “bodywork therapist” or “bodyworks therapist”; or (v) a commercial broadcast by airwave transmission.

(c) A person who: (i) is otherwise licensed, certified or registered under the law; (ii) is performing services within the person’s authorized scope of practice; and (iii) does not hold the person’s self out to be a massage therapist or bodywork therapist, shall be exempt from this section.

SECTION 15. Section 51 of chapter 140 of the General Laws, as so appearing, is hereby amended by inserting after the word “therapy”, in lines 1 and 8, each time it appears, the following words:- or bodyworks.

SECTION 16. Subsection (b) of said section 51 of said chapter 140 is hereby amended by striking out the last sentence and inserting in place thereof the following sentence:-

A massage therapist, bodyworks therapist or bodyworker, whose license to practice massage therapy or bodywork therapy is revoked or suspended for more than 1 year with regard to insurance claims, shall not own, operate, practice in or be employed by a massage therapy or bodywork therapy office, clinic or other place designated for the practice of massage therapy, bodywork therapy, physical therapy or chiropractic.

SECTION 17. Said chapter 140 is hereby further amended by striking out section 52, as so appearing, and inserting in place thereof the following section:-

Section 52. A member of the police department of a town may, upon appropriate legal process, enter and inspect any premises in that town used for massage, bodyworks or the giving of vapor baths.

SECTION 18. The board of registration of massage therapy and bodyworks established under section 98 of chapter 13 of the General Laws shall promulgate regulations not more than 180 days after a quorum of the board is appointed. 

SECTION 19.  All orders, rules and regulations duly made and all licenses and approvals duly granted that are in force immediately before the effective date of this act shall continue in force and shall thereafter be enforced until superseded, revised, rescinded or cancelled in accordance with law by the appropriate board.

SECTION 20.  The board of registration of massage therapy and bodyworks established under section 98 of chapter 13 of the General Laws shall receive applications for licenses under section 231 of chapter 112 of the General Laws not later than July 1, 2019.

SECTION 21.  This act shall take effect upon its passage.