44TH LEGISLATURE - STATE OF NEW MEXICO - FIRST SESSION, 1999
RELATING TO LICENSING; REVISING THE PROVISIONS OF LAW REGULATING THE PRACTICE OF MASSAGE THERAPY; AMENDING, REPEALING AND ENACTING SECTIONS OF THE NMSA 1978.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO:
Section 1. Section 61-12C-2 NMSA 1978 (being Laws 1991, Chapter 147, Section 2) is amended to read:
"61-12C-2. LEGISLATIVE PURPOSE.--[The legislature
recognizes that the practice of massage therapy is potentially
dangerous to the public. Therefore, it is necessary and] In
the interest of public health, safety and welfare [to regulate
the practice of massage therapy] and to protect the public
from unlawful, improper and incompetent practice of massage
therapy, it is necessary to regulate that practice."
Section 2. Section 61-12C-3 NMSA 1978 (being Laws 1991, Chapter 147, Section 3, as amended) is amended to read:
"61-12C-3. DEFINITIONS.--As used in the Massage Therapy Practice Act:
[A. "approved massage therapy school" means a
facility registered with the board that meets established
standards of training and curriculum;
B.] A. "board" means the [board of] massage
therapy board;
[C.] B. "department" means the regulation and
licensing department;
C. "jurisprudence" means the statutes and rules of the state pertaining to the practice of massage therapy;
D. "massage therapist" means a person [who uses
the title of massage therapist, is] licensed to practice
massage therapy pursuant to the Massage Therapy Practice Act
[and administers massage therapy for compensation];
E. "massage therapy" means [the treatment of soft
tissues for therapeutic purposes as defined in Section
61-12C-4 NMSA 1978; and
F. "jurisprudence" means the statutes and rules of
the state pertaining to the practice of massage therapy]
manipulating muscles, ligaments, tendons, muscle insertions
and muscle anchors to effect a change in soft tissues of the
human body to produce comfort or the relief of pain primarily
for therapeutic purposes, but "massage therapy" does not
include somatic practices as defined by the board or
reflexology;
F. "massage therapy school" means a facility providing a curriculum in massage therapy that is registered with the board; and
G. "massage therapy training program" means a program providing massage therapy training that is not a massage therapy school and is registered with the board."
Section 3. Section 61-12C-4 NMSA 1978 (being Laws 1991, Chapter 147, Section 4, as amended by Laws 1993, Chapter 158, Section 8 and also by Laws 1993, Chapter 173, Section 3) is amended to read:
"61-12C-4. [MASSAGE THERAPY--THERAPY--DEFINED]
EXCLUSIONS FROM ACT.--
[A. Massage therapy is the treatment of soft
tissues for therapeutic purposes, primarily comfort and relief
of pain. Massage therapy is a health care service. Massage
therapy includes but is not limited to effleurage, petrissage,
tapotement, compression, vibration, friction, nerve strokes
and Swedish gymnastics. Massage therapy may include the use
of oils, salt glows, hot or cold packs or hydrotherapy.
Synonymous terms for massage therapy include massage,
therapeutic massage, body massage, myomassage, bodywork, body
rub or any derivation of those terms.
B. The terms "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, physical therapy,
occupational therapy, acupuncture or podiatry is required by
law.] Excluded from the application of other provisions of the
Massage Therapy Practice Act are:
A. services or procedures for which a license or registration is required by law or rule and that are provided by licensed or registered members of recognized professions within the scope of the license or registration;
B. students who render massage therapy as part of a course of study in a massage therapy school under the supervision of a registered massage therapy instructor;
C. a visiting massage therapy instructor from another state or territory of the United States, the District of Columbia or a foreign country if he is licensed or registered in his place of residence if required under that place's laws or, if not required, then if he is qualified in that place to provide massage therapy; and
D. traditional Hispanic or Native American healing practices performed by a sobador or a Native American healer."
Section 4. Section 61-12C-5 NMSA 1978 (being Laws 1991, Chapter 147, Section 5, as amended) is amended to read:
"61-12C-5. LICENSE OR REGISTRATION REQUIRED.--[Effective
April 30, 1992]
A. [it is unlawful for any] A person [to practice]
shall not provide or offer to provide massage therapy for
compensation [to offer services as a massage therapist for
compensation or to purport to be a massage therapist] unless
that person [possesses a license to practice massage therapy
under the provisions of the Massage Therapy Practice Act and]
is a massage therapist.
B. [no] A person shall not use the title of or
represent himself to be a massage therapist or use any other
title, abbreviations, letters, figures, signs or devices that
indicate [that] the person is a massage therapist unless he is
[licensed to practice massage therapy pursuant to the
provisions of the Massage Therapy Practice Act] a massage
therapist.
C. A person shall not provide or offer to provide massage therapy training as a massage therapy instructor unless he is registered as a massage therapy instructor pursuant to Section 61-12C-9 NMSA 1978.
D. A person shall not maintain, manage or operate a school or training program offering education, instruction or training in massage therapy unless the school or program is a massage therapy school or a massage therapy instruction program."
Section 5. Section 61-12C-7 NMSA 1978 (being Laws 1991, Chapter 147, Section 7, as amended) is amended to read:
"61-12C-7. BOARD CREATED--MEMBERSHIP.--
A. [There is created] The [board of] "massage
therapy board" is created. The board [shall be] is
administratively attached to the department.
B. The board [shall consist] consists of five
members who are New Mexico residents. Members of the board
shall be appointed by the governor to terms of four years.
The terms shall be staggered, and the governor shall make
appointments of two two-year terms, two three-year terms and
one four-year term, if necessary to produce staggered terms.
Three members of the board shall be massage therapists, each
with at least five years of massage therapy practice [in New
Mexico] and who are actively engaged in the practice of
massage therapy during their tenure as members. Two members
of the board shall be public members [The initial three
professional members appointed shall meet the requirements for
licensure and be licensed by the deadline specified for
licensure in the Massage Therapy Practice Act. The public
members shall not] who have not been licensed [or] and have
[any] no financial interest, direct or indirect, in the
profession [regulated] of massage therapy.
C. Each member of the board shall hold office
[until the expiration of the term for which appointed or]
until a successor has been appointed and qualified.
D. No board member shall serve more than two full consecutive terms.
E. The board shall elect annually a [chairman]
chair and [such] other officers as it deems necessary. The
board shall meet as often as necessary for the conduct of
business, but no less than twice a year. Meetings shall be
[called by the chairman or upon the written request of three
or more members of the board] held in accordance with the Open
Meetings Act. Three members, at least one of whom [is] must
be a public member, shall constitute a quorum.
F. [Any] A board member may be recommended for
removal as a member of the board for failing to attend, after
proper notice, three consecutive board meetings.
G. Members of the board shall be reimbursed as provided for nonsalaried public officers in the Per Diem and Mileage Act and shall receive no other compensation, perquisite or allowance."
Section 6. Section 61-12C-8 NMSA 1978 (being Laws 1991, Chapter 147, Section 8, as amended) is amended to read:
"61-12C-8. BOARD [DUTIES] POWERS.--The board [shall
have] has the power to:
A. adopt and file, in accordance with the State
Rules Act, rules [and regulations] necessary to carry out the
provisions of the Massage Therapy Practice Act, in accordance
with the provisions of [the Uniform Licensing Act] Sections
61-1-29 through 61-1-32 NMSA 1978;
B. provide for the evaluation of the qualifications of applicants for licensure or registration under the Massage Therapy Practice Act;
C. provide for the issuance of licenses or registrations to applicants who meet the requirements of the Massage Therapy Practice Act;
D. provide for the inspection, when required, of the business premises of any licensee or registrant during regular business hours;
E. establish minimum training and educational standards for licensure as a massage therapist or registration as a massage therapy instructor;
F. establish a process for [approval] registration
of massage therapy training programs and massage therapy
schools;
[G. provide for the investigation of persons
engaging in practices that may violate the provisions of the
Massage Therapy Practice Act;
H. revoke, suspend or deny a license or
registration in accordance with the provisions of the Uniform
Licensing Act;]
G. pursuant to the Uniform Licensing Act, conduct hearings on charges against applicants, licensees or registrants and take actions described in Section 61-1-3 NMSA 1978;
H. bring an action for injunctive relief in district court seeking to enjoin a person from violating the provisions of the Massage Therapy Act;
I. issue cease and desist orders to persons violating the provisions of the Massage Therapy Practice Act or any rule adopted by the board pursuant to that act;
[I.] J. adopt an annual budget;
[J.] K. adopt a code of [ethics and] professional
conduct;
[K.] L. provide for the investigation of
complaints against licensees [The board may issue
investigation subpoenas prior to the issuance of a notice of
contemplated action as set forth in Section 61-1-4 NMSA 1978];
and
M. publish at least annually combined or separate lists of licensed massage therapists, registered massage therapy instructors, registered massage therapy schools and registered massage therapy training programs."
Section 7. Section 61-12C-9 NMSA 1978 (being Laws 1991, Chapter 147, Section 9, as amended) is amended to read:
"61-12C-9. REQUIREMENTS FOR LICENSURE [REGISTERED] OF
MASSAGE THERAPISTS AND REGISTRATION OF MASSAGE THERAPY
INSTRUCTORS.--
A. The board shall issue a license to practice massage therapy to any person who files a completed application, accompanied by the required fees, and who submits satisfactory evidence that the applicant:
(1) has reached the age of majority;
(2) has completed all educational requirements established by the board;
(3) has completed a curriculum at a massage
therapy school or a massage therapy training program [approved
by the board, at a school approved by the board, that program]
being at least six hundred fifty hours in length that includes
at least five hundred hours of massage therapy instruction;
[provided that if the approved training program is] if the
applicant has completed a curriculum of less than six hundred
fifty hours, the applicant shall provide documentation of up
to [three] one hundred fifty hours of alternative qualifying
experience, including [but not limited to] professional
massage therapy experience, apprenticeship training in massage
therapy, clinical or internship training and prior experience
in a health career, to be approved by the board; and
(4) demonstrates professional competence by
passing [a written examination as] all examinations prescribed
by [the] board rule.
[B. The board may also require a practical
examination as a condition for licensure.
C.] B. The board shall register as a massage
therapy instructor any applicant who:
(1) is currently licensed as a massage therapist; and
[(2) proves to the board's satisfaction that
he meets the minimum requirement of two years of experience in
his area of instruction]
(2) has completed the educational and experience requirements established by the board, which requirements shall meet minimum standards of training and curriculum for massage therapy instructors established by the board.
C. An initial license or registration issued pursuant to this section may be for a period of up to two years pursuant to board rule."
Section 8. Section 61-12C-10 NMSA 1978 (being Laws 1991, Chapter 147, Section 10, as amended) is amended to read:
"61-12C-10. [APPROVED] REQUIREMENTS FOR REGISTRATION OF
MASSAGE THERAPY SCHOOLS [REGISTRATION] AND MASSAGE THERAPY
TRAINING PROGRAMS.--
A. The board shall establish by rule procedures
for [approval] the registration of massage therapy schools and
massage therapy training programs and shall register massage
therapy schools and massage therapy training programs that
meet the [educational] requirements of the Massage Therapy
Practice Act and rules adopted by the board pursuant to that
act.
B. The board shall establish minimum standards of
training and curriculum for [approved training programs and
for approved] massage therapy schools. [At a minimum,
approved] Massage therapy schools shall provide [training
programs] a curriculum that [include] includes a minimum of
[three] six hundred fifty hours of training [This] and shall
include instruction in:
(1) anatomy;
(2) physiology;
(3) at least five hundred hours in massage therapy;
(4) business;
(5) hydrotherapy;
(6) first aid;
(7) cardiopulmonary resuscitation; and
(8) professional ethics.
C. The board shall establish minimum standards of training and curriculum for massage therapy training programs. Massage therapy training programs shall provide a curriculum that includes a minimum of six hundred fifty hours of training and instruction in the subjects described in Paragraphs (1) through (8) of Subsection B of this section.
[C.] D. The board shall establish a list of
[approved] registered massage therapy schools and [shall
register any institution that meets the requirements of the
board and files a current curriculum and list of instructors. D. An approved massage therapy school shall
register annually with the board] massage therapy training
programs.
E. A massage therapy school or a massage therapy training program shall limit the description on its diplomas, certificates or other evidences of successful completion of training to the words "massage therapy" to describe the content of the training."
Section 9. Section 61-12C-11 NMSA 1978 (being Laws 1991, Chapter 147, Section 11, as amended) is amended to read:
"61-12C-11. DISPLAY OF LICENSE OR REGISTRATION.--A massage therapy license or registration issued by the board shall at all times be posted in a conspicuous place in the holder's principal place of business."
Section 10. Section 61-12C-13 NMSA 1978 (being Laws 1991, Chapter 147, Section 13, as amended) is amended to read:
"61-12C-13. EXAMINATIONS.--
A. [Examinations shall be held at least twice each
year on a date and at a location established by the board.
Applicants who have been found to meet the education and
experience requirements for licensure shall be scheduled for
the next examination following the filing of the application.]
The board shall establish by rule the [examination application
deadline and other rules relating to] required examinations
and the procedures for taking and retaking [licensure
examinations] them. The board shall determine the passing
grade on examinations.
B. The board shall specify by rule the general areas of competency to be covered by examinations for licensure and ensure that the examinations measure adequately both an applicant's competency and knowledge of related statutory requirements. Professional testing services may be utilized for the examinations.
[C. After taking the written examination, each
applicant may be tested in the practical application of
massage therapy techniques in such a manner and by such
methods as shall reveal the applicant's skill and knowledge.
D. All licensing examinations shall be conducted
in such a manner that the applicants shall be known to the
board by number until the examination is completed and the
grade determined. A record of each examination shall be filed
in the board office and available for inspection for a period
of not less than two years immediately following the
examination.]"
Section 11. Section 61-12C-14 NMSA 1978 (being Laws 1991, Chapter 147, Section 14, as amended) is amended to read:
"61-12C-14. TEMPORARY LICENSE.--
A. Prior to examination, an applicant for
licensure may obtain a temporary license to engage in the
practice of massage therapy [provided that] if the applicant
meets all the requirements for licensure except completion of
the examination.
B. The temporary license is valid until the
results of the next scheduled examination are available and a
license is issued or denied. [If approved, the applicant
shall be issued the initial license for the remainder of the
year.]
C. No more than one temporary license may be issued to an individual, and no temporary license shall be issued to an applicant who has previously failed the examinations."
Section 12. Section 61-12C-16 NMSA 1978 (being Laws 1991, Chapter 147, Section 16, as amended) is amended to read:
"61-12C-16. LICENSURE BY CREDENTIALS.--After successful
completion of a jurisprudence examination, the board may
license an applicant, provided that he possesses a valid
license or registration to practice massage therapy issued by
the appropriate examining board under the laws of any other
state or territory of the United States, the District of
Columbia or any foreign nation and has met educational and
examination requirements [substantially equivalent] equal to
or exceeding those established pursuant to the Massage Therapy
Practice Act."
Section 13. Section 61-12C-17 NMSA 1978 (being Laws 1991, Chapter 147, Section 17, as amended) is amended to read:
"61-12C-17. LICENSE OR REGISTRATION RENEWAL--CONTINUING EDUCATION.--
A. Massage therapy licenses and massage therapy
instructor registrations shall expire biennially. [and]
Massage therapy school registrations and massage therapy
training program registrations shall expire annually. [on a
date] Expiration dates shall be established by rule.
[B. Each licensee shall renew his license by
submitting a renewal application on a form provided by the
board. Initial licenses may be valid for one or two years,
depending on assigned license number and board rule.
C.] B. The board may establish continuing
educational requirements as a condition of the renewal of
massage therapy licenses
[D. Each massage therapy school shall renew its
registration by submitting a renewal application and providing
a description of its current curriculum and list of all
instructors] and massage therapy instructor registrations.
C. A license or registration shall be renewed by submitting a renewal application on a form provided by the board.
[E.] D. A sixty-day grace period shall be allowed
each license or registration holder after the end of the
renewal period, during which time a license or registration
may be renewed upon payment of the renewal fee and a late fee
as prescribed by the board."
Section 14. Section 61-12C-18 NMSA 1978 (being Laws 1991, Chapter 147, Section 18) is amended to read:
"61-12C-18. INACTIVE STATUS.--
A. [Any license] A massage therapy license or
massage therapy instructor registration not renewed at the end
of the sixty-day grace period shall be placed on inactive
status for a period not to exceed two years. At the end of
two years, if the license or registration has not been
reactivated, it shall automatically expire.
B. If within a period of two years from the date
the license or registration was placed on inactive status the
massage therapist or massage therapy instructor wishes to
resume practice, the board shall be notified in writing, and,
upon proof of completion of any continuing education or
refresher courses prescribed by [regulation] rule of the board
and payment of an amount set by the board in lieu of all
lapsed renewal fees, the license or registration shall be
restored in full."
Section 15. Section 61-12C-20 NMSA 1978 (being Laws 1991, Chapter 147, Section 20, as amended) is amended to read:
"61-12C-20. LICENSE FEES.--[A.] The board shall
establish by rule a schedule of reasonable fees for
applications, examinations, licenses, registrations,
inspections, renewals, [placement on inactive status]
penalties, reactivation and necessary administrative fees,
[B. The initial licensure application fee shall
not exceed fifty dollars ($50.00).
C. The initial license fee shall not exceed one
hundred fifty dollars ($150).
D. The examination fee shall not exceed four
hundred dollars ($400).
E. The biennial renewal fee shall not exceed three
hundred dollars ($300).
F. The fee for reactivation of an inactive license
shall not exceed four hundred dollars ($400).
G. A late renewal fee shall not exceed one hundred
dollars ($100).
H. The registration fee for an approved massage
therapy school shall not exceed one hundred dollars ($100).
I. The registration fee for a massage therapy
instructor shall not exceed fifty dollars ($50.00)] but no
single fee shall exceed five hundred dollars ($500). All fees
collected shall be deposited in the massage therapy fund."
Section 16. Section 61-12C-21 NMSA 1978 (being Laws 1991, Chapter 147, Section 21, as amended) is amended to read:
"61-12C-21. ADVERTISING.--[Each] A massage therapist,
massage therapist instructor, massage therapy school and
massage therapy training program licensed or registered [under
the provisions of] pursuant to the Massage Therapy Practice
Act shall include the number of [his] the license or
registration, and the designation as [either] a [license or
registration] "massage therapist", "registered massage therapy
instructor", "registered massage therapy school" or
"registered massage therapy training program" in any
advertisement of massage therapy services [appearing in any
newspaper, airwave transmission, telephone directory or other
advertising medium] as established by board rule."
Section 17. Section 61-12C-24 NMSA 1978 (being Laws 1991, Chapter 147, Section 24, as amended) is amended to read:
"61-12C-24. DENIAL, SUSPENSION, REVOCATION AND REINSTATEMENT OF LICENSES.--
[A. The board may impose a fine not to exceed one
thousand dollars ($1,000), place on probation as specified by
the board or refuse to issue or renew or may deny, suspend or
revoke any license, temporary license or registration held or
applied for under the Massage Therapy Practice Act in
accordance with the procedures]
A. Pursuant to the Uniform Licensing Act, the board may take disciplinary action against a person licensed or registered pursuant to the Massage Therapy Practice Act.
B. The board has authority to take an action set
forth in [the Uniform Licensing Act] Section 61-1-3 NMSA 1978
upon a finding by the board that the licensee, registrant or
applicant:
(1) is guilty of fraud, deceit or
misrepresentation [in procuring or attempting to procure a
license or registration provided for in the Massage Therapy
Practice Act];
(2) attempted to use as his own the license or registration of another;
(3) allowed the use of his license or registration by another;
(4) has been adjudicated as mentally incompetent by regularly constituted authorities;
(5) has been convicted [or found guilty,
regardless of adjudication, of a crime, in any jurisdiction,
that directly relates to the practice of massage therapy or to
the ability to practice massage therapy. Any plea of nolo
contendere shall be considered a conviction for the purposes
of this section] of any offense punishable by incarceration in
a state penitentiary or federal prison. A copy of the record
of conviction, certified by the clerk of the court entering
the conviction, is conclusive evidence of conviction;
(6) is guilty of unprofessional or unethical conduct or a violation of the code of ethics;
(7) is habitually or excessively using controlled substances or alcohol;
(8) is guilty of false, deceptive or misleading advertising;
(9) is guilty of aiding, assisting or advertising any unlicensed or unregistered person in the practice of massage therapy;
(10) is grossly negligent or incompetent in
the practice of massage therapy; [or]
(11) has had a license or registration to
practice massage therapy revoked, suspended or denied in any
jurisdiction, territory or possession of the United States or
another country for acts of the licensee or registrant similar
to acts described in this section. A certified copy of the
record of conviction shall be conclusive evidence of [such]
the conviction; or
(12) is guilty of failing to comply with a provision of the Massage Therapy Practice Act or rules of the board adopted pursuant to that act and filed in accordance with the State Rules Act.
[B.] C. Disciplinary proceedings may be instituted
by sworn complaint of any person, including members of the
board, and shall conform with the provisions of the Uniform
Licensing Act.
[C.] D. The board may establish the guidelines for
the disposition of [the] disciplinary cases. [Such]
Guidelines may include but shall not be limited to minimum and
maximum fines, periods of probation, conditions of probation
or reissuance of a license or registration.
[D.] E. License and registration holders who have
been found culpable and sanctioned by the board shall be
responsible for the payments of all costs of the disciplinary
proceedings."
Section 18. Section 61-12C-27 NMSA 1978 (being Laws 1993, Chapter 173, Section 20) is amended to read:
"61-12C-27. OFFENSES--CRIMINAL PENALTIES.--[Any person
who violates any provision of the Massage Therapy Practice Act
is guilty of a misdemeanor and upon conviction shall be
punished by a fine not to exceed one thousand dollars ($1,000)
or imprisonment for a period not to exceed one year or both.]
A person who does any of the following is guilty of a
misdemeanor and shall be sentenced pursuant to Section 31-19-1
NMSA 1978:
A. violates a provision of the Massage Therapy Practice Act or rules adopted pursuant to that act;
B. renders or attempts to render massage therapy services, instruction as a massage therapy instructor, instruction as a massage therapy school or massage therapy training program without the required current valid license or registration issued by the board; or
C. advertises or uses a designation, diploma or certificate implying that he is a massage therapist, massage therapy instructor, massage therapy school or massage therapy training program unless he holds a current valid license or registration issued by the board."
Section 19. Section 61-12C-28 NMSA 1978 (being Laws 1993, Chapter 173, Section 21) is amended to read:
"61-12C-28. TERMINATION OF AGENCY LIFE--DELAYED
REPEAL.--The board of massage therapy is terminated on [July
1, 1999] July 1, 2006 pursuant to the provisions of the Sunset
Act. The board shall continue to operate according to the
provisions of Chapter 61, Article 12C NMSA 1978 until [July 1,
2000] July 1, 2007. Effective [July 1, 2000, Article 12C of]
July 1, 2007, Chapter 61, Article 12C NMSA 1978 is repealed."
Section 20. REPEAL.--Section 61-12C-6 NMSA 1978 (being Laws 1991, Chapter 147, Section 6, as amended) is repealed.
Section 21. EFFECTIVE DATE.--The effective date of the provisions of this act is July 1, 1999.