HB 908-FN – AS INTRODUCED
2007 SESSION
10/03
HOUSE BILL 908-FN
AN ACT relative to the licensure and regulation of massage therapists and registration of somatic and bodywork practitioners.
SPONSORS: Rep. Baroody, Hills 13
COMMITTEE: Executive Departments and Administration
This bill establishes the board of massage therapists for the licensure and regulation of persons engaged in the practice of massage therapy, and the registration of somatic and bodywork practitioners. This bill also repeals the current licensure and regulation of massage therapists under RSA 328-B and establishes transition provisions.
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Explanation: Matter added to current law appears in bold italics.
Matter removed from current law appears [in brackets and struckthrough.]
Matter which is either (a) all new or (b) repealed and reenacted appears in regular type.
07-0136
10/03
STATE OF NEW HAMPSHIRE
In the Year of Our Lord Two Thousand Seven
AN ACT relative to the licensure and regulation of massage therapists and registration of somatic and bodywork practitioners.
Be it Enacted by the Senate and House of Representatives in General Court convened:
1 New Chapter; Massage Therapy and Somatic and Bodywork Practice. Amend RSA by inserting after chapter 328-G the following new chapter:
CHAPTER 328-H
MASSAGE THERAPY AND SOMATIC AND BODYWORK PRACTICE
328-H:1 Regulation of Massage Therapists and Somatic and Bodywork Practitioners. The general court, to protect the health, safety, and welfare of the people of the state of New Hampshire, establishes a regulatory board for licensure of massage therapists, approval of massage therapy educational programs, and registration of somatic and bodywork practitioners. The general court recognizes that there are different and specific bodywork professions, and this chapter provides for licensure and registration to differentiate those professions that have attained maturity through established history and the creation of credible professional associations and training.
328-H:2 Definitions. In this chapter:
I. “Applicant” means a person who has submitted to the board an application for a license or registration pursuant to this chapter.
II. “Board” means the board of licensed massage therapists.
III. “Compensation” means the receipt of:
(a) Money, goods, services, or other things of value; or
(b) A promise to deliver money, goods, services, or other things of value.
IV. “Licensee” means a person to whom a license has been issued pursuant to this chapter.
V. “Massage therapist” means an individual who performs massage therapy for compensation. A massage therapist uses visual, kinesthetic, and palpatory skills to assess the body, and may evaluate the client’s condition to the extent of determining whether massage therapy is indicated or contraindicated.
VI. “Massage therapy” means the application of a system of structured touch which includes holding, pressure, positioning, or soft tissue manipulation, by manual means, for the purpose of promoting, maintaining, and restoring the health and well-being of the client. Massage therapy is designed to promote general relaxation, improve movement, relieve pain or dysfunction, relieve stress and muscle tension, and provide for general health enhancement, personal growth, and the organization, balance, and integration of the body.
VII. “Registrant” means a person to whom a registration has been issued pursuant to this chapter.
VIII. “Somatic and bodywork practitioner” means a person who practices touch therapies who is not required to be licensed as a massage therapist under this chapter, and is registered by the board.
328-H:3 Scope of Practice for Massage Therapists.
I. Massage therapists may apply a system of structured touch which includes holding, pressure, positioning, or soft tissue manipulation, by manual means, for the purpose of promoting, maintaining, and restoring the health and well-being of the client.
II. A massage therapist may use visual, kinesthetic, and palpatory skills to assess the body, and may evaluate the client’s condition to the extent of determining whether massage therapy is indicated or contraindicated.
III. Massage therapists shall perform only the therapies and techniques for which they have been trained as stated in the certificates, diplomas, or transcripts from the school or program of massage therapy where trained.
328-H:4 Prohibited Acts. No person shall:
I. Act or advertise as a massage therapist for compensation without holding a license issued pursuant to this chapter.
II. Act or advertise as a somatic and bodywork practitioner for compensation without holding a registration issued pursuant to this chapter.
III. Fail to comply with an order of the board issued pursuant to this chapter.
IV. Fail to comply with a rule adopted by the board pursuant to this chapter.
V. Violate any other provision of this chapter or administrative rules adopted under this chapter.
VI. Hire any person as an employee or independent contractor to perform massage therapy who does not hold a license issued pursuant to this chapter.
VII. Hire any person as an employee or independent contractor to perform somatic bodywork who does not hold a registration issued pursuant to this chapter.
328-H:5 Board of Licensed Massage Therapists.
I. There is established a board of licensed massage therapists, consisting of 5 members. The board shall be appointed by the governor with consent of the executive council and shall consist of 4 licensed massage therapists and one public member.
II. The board shall:
(a) Conduct meetings as required;
(b) Select a chairperson and officers from the members of the board; and
(c) Maintain a true record of the board’s official acts.
III. Members of the board shall serve 3-year terms, shall hold office until successors are appointed, and shall serve no more than 2 consecutive terms.
IV. The board may remove a member for malfeasance, misfeasance, or nonfeasance.
V. All members of the board shall have been residents of this state for at least 3 years immediately preceding appointment to the board.
VI. The massage therapist members of the board shall have been licensed massage therapists in this state for at least 5 years preceding appointment.
VII. The public member shall not be, nor ever have been, a member of the massage therapy or somatic and bodywork profession nor have or have had a material, financial interest in either the provision of massage therapy or somatic and bodywork services or an activity directly related to the massage therapy or somatic and bodywork professions, including the representation of the board or profession for a fee at any time during the 5 years preceding appointment.
VIII. The board shall be an administratively attached agency, under RSA 21-G:10, to the department of health and human services.
IX. The board shall establish an office in Concord, and shall have authority to retain an administrator and investigators and other technical and clerical staff to run the board’s business in an efficient manner.
X. The fees established by the board shall be sufficient to produce estimated revenues equal to 125 percent of the direct operating expenses of the board for the previous fiscal year.
XI. There shall be no monetary liability on the part of, and no cause of action shall arise against, the members of the board for any act done or proceeding undertaken or performed in good faith and in furtherance of the purposes of this chapter.
XII. Three members of the board constitute a quorum for the transaction of business.
328-H:6 Duties of the Board. The board shall:
I. Adopt a code of ethics for the practices of massage therapy and somatic bodywork in this state.
II. Establish appropriate disciplinary actions including penalties, sanctions, supplemental training requirements, and treatment and counseling requirements for licensees and registrants involved in violations of this chapter, which may include revocation of license or registration, suspension of license or registration, conditional license and registration, fines, community service, oral or written reprimand, additional education or training, and supervised training and counseling, including substance abuse treatment and counseling.
III. Issue, suspend, revoke, renew, and deny licenses and registrations in accordance with rules adopted under RSA 328-H:17.
IV. Review, approve, and deny curricula and instructor applications for all massage therapy programs, including those that exist in degree-granting institutions.
V. Hold hearings and conduct investigations, public or confidential, and issue orders relating to such hearings and investigations.
328-H:7 Compensation; Expenses. The members of the board shall receive $50 per diem for meetings and board activities requiring under 3 hours and $100 per diem for meetings and board activities requiring 3 or more hours, within a 24-hour period. Each member of the board shall be reimbursed for actual and necessary travel expenses incurred in the discharge of official duties at the state employee mileage rate.
328-H:8 Requirements for Massage Therapist Licensure. It shall be unlawful for any person to practice massage therapy without a license, unless such person is exempt under RSA 328-H:21.
I. Any person who wishes to practice massage therapy shall be licensed as a massage therapist by the board.
II. Massage therapist licenses issued by the board shall be valid for 2 years from the date of issue.
III. Massage therapist licenses shall be posted in each office the licensee practices in, or carried on the licensee if the licensee practices massage therapy at locations other than his or her own office or offices.
328-H:9 Temporary License for Massage Therapists.
I. The board shall issue a temporary license to any person who has attended a massage therapy program in another state who does not currently meet the requirements for licensure, provided that he or she:
(a) Is at least 21 years of age on the date of the application;
(b) Submits documentation of New Hampshire residency;
(c) Has met the requirements of RSA 328-H:10, I(b) through (d);
(d) Has completed a massage therapy program with minimum educational hours to be determined by the board; and
(e) Provides documentation of practicing as a massage therapist in another state for at least 3 years.
II. The temporary license shall be valid for only one year in order for the temporary licensee to complete any additional educational or examination requirements for a massage therapy license in accordance with RSA 328-H:10, I(e) and the rules adopted under this chapter.
III. A temporary license shall not be renewed.
328-H:10 Massage Therapy License Issuance; Reciprocity.
I. The board shall issue a massage therapy license to each qualified applicant who:
(a) Is at least 18 years of age on the date of the application;
(b) Makes an application on a form prescribed by the board;
(c) Makes payment of fees required in rules adopted by the board;
(d) Has not been convicted in New Hampshire or in any other state of any crime involving violence inflicted on a person or threatened against a person, or any sexually-related crime; and
(e) Has met all of the educational and examination requirements for licensure under the applicable statutes and rules, including demonstration of passage of a board approved written examination.
II. The board may waive any requirements for licensure for any applicant for a massage therapy license who, on the date of application, holds a valid license issued by any other state or country, but only if the other licensing body’s requirements are substantially equivalent to or not less than the requirements under this chapter. Such licensure shall not preclude completion of an application and payment of appropriate fees.
328-H:11 Renewal of Massage Therapist License; Reinstatement; Continuing Education Requirement.
I. Licenses issued under this chapter shall be subject to renewal, and shall lapse unless renewed or reinstated in accordance with rules adopted by the board under RSA 328-H:17.
II. Renewal of licenses shall be contingent upon the licensee’s completion of continuing education. Applicants for renewal shall be required to complete 24 hours of continuing education related to the practice of massage therapy within the previous license period.
III. All licenses issued pursuant to this chapter shall expire 2 years after the date of issue. License renewals shall be granted upon approval of the board of the renewal application and submission of the required renewal fee.
IV. Licenses shall continue as valid until final action is exercised by the board on an application for renewal, provided that the application is filed before the expiration date of the license.
328-H:12 Massage Therapist Inactive Status. Massage therapy licenses may be placed into inactive status by the licensee for up to 3 years, provided that:
I. The board receives, prior to the expiration date of the current license, a written request from the licensee to place the license into inactive status;
II. The licensee submits 1/2 of the license fee for each year the license remains inactive; and
III. The licensee maintains the required number of continuing education credits.
328-H:13 Requirement for Licensure of Massage Therapy Education Programs. All massage therapy education programs shall be required to obtain a license from the postsecondary education commission, including those massage therapy programs that exist in degree-granting institutions.
328-H:14 Requirements for Somatic and Bodywork Practitioner Registration. It shall be unlawful for any person to practice somatic bodywork without a registration issued by the board, unless such person is exempt under RSA 328-H:21. Somatic and bodywork practitioner registrations shall be posted in each office the registrant practices in, or carried on the registrant if the registrant practices somatic bodywork at locations other than his or her own office or offices.
328-H:15 Somatic and Bodywork Practitioner Registration Issuance.
I. The board shall issue a somatic and bodywork practitioner registration to each qualified applicant who:
(a) Is at least 18 years of age on the date of the application;
(b) Makes an application on a form prescribed by the board;
(c) Makes payment of fees required in rules adopted by the board;
(d) Has not been convicted in New Hampshire or in any other state of any crime involving violence inflicted on a person or threatened against a person, or any sexually-related crime; and
(e) Holds a current certificate from a certifying agency, approved by the board.
II. Registrations shall be issued based on the applicant’s specific training, and each registration shall identify the particular technique in which the applicant is trained and registered.
328-H:16 Renewal of Somatic and Bodywork Practitioner Registration; Reinstatement.
I. Registrations issued under this chapter shall be subject to renewal, and shall lapse unless renewed or reinstated in accordance with rules adopted by the board under RSA 328-H:17.
II. All registrations issued pursuant to this chapter shall expire 2 years after the date of issue. Registration renewals shall be granted upon approval of the board of the renewal application and submission of the required renewal fee.
III. Registrations shall continue as valid until final action is exercised by the board on an application for renewal, provided that the application is filed before the expiration date of the registration.
328-H:17 Rulemaking. The board shall adopt rules, under RSA 541-A, relative to the practice of massage therapy and somatic and bodywork practice. Such rules shall include:
I. Procedures for licensing and registration, to include new, renewal, reinstated, and lapsed licenses and registrations.
II. The educational and certification requirements for licensure and registration.
III. The qualifications required for a massage therapist, which may include demonstration of passage of a psychometrically valid written examination approved by the board.
IV. Procedures for suspension, revocation, and reinstatement of licenses and registrations.
V. The establishment of license and registration application fees, examination fees, late fees, reinstated license and registration fees, instructor application fees, and fees for administrative fines.
VI. The establishment of massage therapy school instructor qualifications and curriculum requirements.
VII. Procedures for massage therapy school instructor application and approval process.
VIII. Continuing education requirements for massage therapists.
IX. Procedures for investigations and hearings held under this chapter.
X. Procedures for criminal background checks.
XI. Disciplinary actions including penalties, sanctions, supplemental training requirements, and treatment and counseling requirements for licensees and registrants involved in violations of this chapter, which may include revocation of license or registration, suspension of license or registration, conditional license or registration, fines, community service, oral or written reprimand, additional education or training, and supervised training and counseling, including substance abuse treatment and counseling.
XII. Any other matter necessary for the proper administration of this chapter.
328-H:18 License and Registration Revocation or Suspension. After notice and opportunity for hearing, as provided for under RSA 541-A, the board may revoke or suspend any license or registration issued pursuant to this chapter if the licensee or registrant:
I. Violates this chapter or any rule or order adopted or issued under it;
II. Knowingly makes any false statement regarding the application, registration, or license or in any report the board requires to be made;
III. Fails to respond to any lawful inquiry of the board; or
IV. Is convicted of any crime involving violence inflicted on a person or threatened against a person, or any sexually-related crime.
328-H:19 Hearings.
I. The contested case provisions of RSA 541-A:31-36 shall apply when a person is aggrieved by a decision of the board under this chapter. Appeals shall be made in accordance with RSA 541.
II. The board shall take no disciplinary action without providing an opportunity for a hearing. At least 14 days prior to hearing, both parties to a disciplinary proceeding shall be served, either personally or by registered mail, with a written copy of the complaint filed and notice of the time and place for hearing. All complaints shall be objectively received and fairly heard by the board, but no complaint shall be acted upon unless in writing. A hearing shall be held on all written complaints received by the board within 3 months of the date notice of a complaint was received by the accused, unless otherwise agreed to by the parties. Written notice of all disciplinary decisions made by the board shall be given to both parties to the proceeding upon their issuance.
III. The board shall have the power to administer oaths or affirmations, preserve testimony, and may issue subpoenas, upon the approval of the attorney general, for witnesses and for documents relative to formal investigations or adjudicatory hearings.
IV. Witnesses summoned before the board shall be paid the same fees as witnesses summoned to appear before the superior court, and such summons issued by any justice of the peace shall have the same effect as though issued for appearance before such court.
328-H:20 Reinstatement. Any person whose license or registration has been suspended or revoked by the board may apply to the board, in writing, to request a hearing for reinstatement. Upon a hearing, the board may issue a new license or registration or modify the suspension or revocation of the license or registration.
328-H:21 Exemptions.
I. Nothing in this chapter shall prevent a person licensed by this state pursuant to any other provision of law from performing the occupation for which he or she is licensed.
II. This chapter shall not apply to athletic trainers to the extent they are performing bona fide training services for an athletic team located or training within this state.
III. The board may by rule exempt other classes of persons from all or part of the provisions of this chapter if the board finds that the public interest will be served by such exemption.
328-H:22 Violations; Penalty. Any person practicing massage therapy within the meaning of this chapter without first obtaining a license as required by this chapter, or any person practicing somatic bodywork within the meaning of this chapter without first obtaining a registration as required by this chapter, or who violates any of the provisions of, or rules adopted under this chapter, shall be guilty of a violation if a natural person, or guilty of a misdemeanor if any other person, for the first offense. For a subsequent offense, a person shall be guilty of a misdemeanor if a natural person, or guilty of a felony if any other person. Each day such facility shall operate or person shall practice this activity after a first conviction shall be considered a subsequent offense.
328-H:23 Administrative Fines. The board, after notice and hearing, pursuant to rules adopted under RSA 541-A, may impose an administrative fine not to exceed $2,000 for each offense upon any person or school who violates any provision of this chapter or rules adopted pursuant to it. Rehearings and appeals from a decision of the board shall be in accordance with RSA 541. Any administrative fine imposed under this section shall not preclude the imposition of further penalties or administrative actions under this chapter. The board shall adopt rules in accordance with RSA 541-A relative to administrative fines which shall be scaled to reflect the scope and severity of the violation. The sums obtained from the levying of administrative fines under this chapter shall be forwarded to the state treasurer to be deposited into the general fund.
328-H:24 Injunctive Relief. The practice of massage therapy or somatic bodywork by a person without a license or registration issued under this chapter or whose license or registration has been suspended or revoked or has expired is declared to be a danger to the public health and welfare. In addition to any other civil, criminal, or disciplinary remedy, the attorney general, the board, or the prosecuting attorney of any county or municipality where the person is practicing or purporting to practice, in accordance with the laws of this state, may maintain an action to enjoin that person from practicing massage therapy or somatic bodywork until such person secures a valid license or registration. An injunction without bond is available to the board for enforcement of this chapter.
2 Barbering, Cosmetology, and Esthetics; Exception. Amend RSA 313-A:25, II(f) to read as follows:
(f) Persons licensed as massage therapists under RSA [328-B] 328-H.
3 Transition Provisions; Initial Board Appointments; Massage Therapists; Rules.
I. The commissioner of the department of health and human services and the advisory board of massage therapists in existence immediately prior to the effective date of this section shall submit nominations for initial board of licensed massage therapists membership to the governor. The initial appointments shall be approved by the governor with the consent of the executive council. The initial board shall elect a chairperson from among the board members no later than the second meeting of the board. The initial appointments to the board shall be as follows:
(a) Two members appointed from the advisory board of massage therapists who shall serve terms of 3 years.
(b) Two licensed massage therapy practitioners, with a minimum of 5 years experience in the field of massage therapy, who shall serve terms of 2 years.
(c) One public member who shall serve a term of 3 years.
II. Any person holding a valid license to practice massage therapy under RSA 328-B on the effective date of this section shall upon application be issued a massage therapist practitioner license by the board established in this act, except that such a massage therapist practitioner license shall be valid until the date that the person’s current massage therapy license expires. Renewals shall be governed by the provisions of RSA 328-H.
III. Valid rules adopted by the commissioner of health and human services relative to massage therapists shall continue in effect despite the repeal of RSA 328-B until the adoption of rules by the board established under RSA 328-H:17.
4 Repeal. RSA 328-B, relative to massage therapists, is repealed.
5 Effective Date.
I. Section 4 of this act shall take effect April 1, 2008.
II. The remainder of this act shall take effect January 1, 2008.
LBAO
07-0136
Revised 03/19/07
HB 908 FISCAL NOTE
AN ACT relative to the licensure and regulation of massage therapists and registration of somatic and bodywork practitioners.
FISCAL IMPACT
The Department of Health and Human Services states this bill will increase state revenue by $46,438 in FY 2008 and each year thereafter, and increase state expenditures by $28,186 in FY 2008 and $35,443 in FY 2009 and each year thereafter. This bill will have no fiscal impact on county and local revenue or expenditures.
METHODOLOGY
The Department of Health and Human Services states this bill would establish the Board of Massage Therapists for the licensure and regulation of persons engaged in the practice of massage therapy, and the registration of somatic and bodywork practitioners. The Department states massage therapy licensing is presently under the Massage Therapy Advisory Committee, and is one of 21 administratively attached boards under the Department. The Advisory Committee is required to generate revenue equal to 125% of their direct operating expenses. The bill would allow the Board to retain an administrator and investigators and other technical and clerical staff to run the Board’s business in a efficient manner. The Department states there would be additional costs for an Administrator (LG25), Part-Time License Clerk (LG11), and per diem for the Board. The Department states the current Advisory Committee is paying for a full-time license clerk which will be abolished once the new Board’s Administrator is hired. The Department estimates this bill would increase costs as follows:
FY 2008 |
FY 2009 & Thereafter | |
Full-Time Personnel |
$12,937 |
$14,208 |
Part-Time Personnel |
$6,000 |
$6,000 |
Benefits |
$6,249 |
$12,235 |
In-State Travel |
$3,000 |
$3,000 |
Total |
$28,186 |
$35,443 |
The Department estimates there would be 21 additional registrants as a result of this bill, and states the fees for initial license ($150) and renewal license ($135) contained in the bill would need to be increased in order to comply with the 125% requirement. The Department estimates annual revenue at $46,438 annually.