SB0200

SENATE BILL 200

54th legislature - STATE OF NEW MEXICO - first session, 2019

INTRODUCED BY

Peter Wirth

AN ACT

RELATING TO MASSAGE THERAPY; AMENDING THE MASSAGE THERAPY PRACTICE ACT TO DELETE CERTAIN REFERENCES TO MASSAGE THERAPY INSTRUCTORS; ADDING A SCOPE OF PRACTICE PROVISION; EXPANDING CONTINUING EDUCATION PROVISIONS; MAKING TECHNICAL CHANGES TO THE MASSAGE THERAPY PRACTICE ACT; DECLARING AN EMERGENCY.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO:

SECTION 1. 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. "board" means the massage therapy board;

B. "continuing education" means courses, seminars, workshops and classes in areas related to the practice of massage therapy, such as:

(1) massage;

(2) bodywork;

(3) health care;

(4) psychology;

(5) anatomy and physiology;

(6) business;

(7) insurance;

(8) ethics;

(9) professional development;

(10) movement therapy;

(11) stress management;

(12) exempt modalities listed in Subsection C of Section 61-12C-5.1 NMSA 1978;

(13) cardiopulmonary resuscitation or first aid; and

(14) complementary alternative medicine modalities determined by the board to be related to the practice of massage therapy;

C. "continuing education provider" means:

(1) an individual who was an active New Mexico registered independent massage therapy instructor on the effective date of this 2019 act;

(2) a massage therapy school regulated by the requisite regulatory agency where the massage therapy school is located;

(3) a national or international professional association for massage therapists;

(4) an individual or an organization approved by a national or international massage therapy continuing education approval agency;

(5) a health care professional organization; or

(6) accredited post-secondary educational institutions;

[B.] D. "department" means the regulation and licensing department;

[C.] E. "jurisprudence" means the statutes and rules of the state pertaining to the practice of massage therapy;

[D.] F. "massage therapist" means [a person] an individual licensed to practice massage therapy pursuant to the Massage Therapy Practice Act;

[E.] G. "massage therapy" means the treatment of soft tissues for therapeutic purposes, primarily comfort and relief of pain; it is a health care service that includes gliding, kneading, percussion, compression, vibration, friction, nerve strokes, stretching the tissue and exercising the range of motion and 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. "Massage therapy" does 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; and

[F.] H. "massage therapy school" means a facility providing an educational program in massage therapy that is registered with the board."

SECTION 2. 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.--

A. [A person] An individual shall not provide or offer to provide massage therapy for compensation unless that [person] individual is a massage therapist.

B. [A person] An individual shall not use the title of or [represent himself to be] make any representation as being a massage therapist or use any other title, abbreviations, letters, figures, signs or devices that indicate the [person] individual is a massage therapist unless [he] the individual is 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 massage therapy school offering education, instruction or training in massage therapy unless the school is a registered massage therapy school.]"

SECTION 3. Section 61-12C-5.1 NMSA 1978 (being Laws 2001, Chapter 121, Section 1, as amended) is amended to read:

"61-12C-5.1. EXEMPTIONS.--Nothing in the Massage Therapy Practice Act shall be construed to prevent:

A. qualified members of other recognized professions that are licensed or regulated under New Mexico law from rendering services within the scope of their licenses or regulations; provided they do not represent themselves as massage therapists;

B. students from rendering massage therapy services within the course of study of [an approved] a registered massage therapy school; and [under the supervision of a licensed massage therapy instructor;

C. visiting massage therapy instructors from another state or territory of the United States, the District of Columbia or a foreign nation from teaching massage therapy; provided the instructor is duly licensed or registered, if required, and is qualified in the instructor's place of residence for the practice of massage therapy. The board shall establish by rule the duration of stay for a visiting massage therapy instructor; and

D.] C. sobadores; Hispanic traditional healers; Native American healers; reflexologists whose practices are limited to hands, feet and ears; practitioners of polarity, Trager approach, Feldenkrais method, craniosacral therapy, Rolfing structural integration, reiki, ortho-bionomy or ch'i gung; or practitioners of healing modalities not listed in this subsection who do not manipulate the soft tissues for therapeutic purposes from practicing those skills. An exempt practitioner who applies for a license [or registration] pursuant to the Massage Therapy Practice Act shall comply with all licensure requirements of that act."

SECTION 4. Section 61-12C-8 NMSA 1978 (being Laws 1991, Chapter 147, Section 8, as amended) is amended to read:

"61-12C-8. BOARD POWERS.--The board has the power to:

A. adopt and file, in accordance with the State Rules Act, rules necessary to carry out the provisions of the Massage Therapy Practice Act, in accordance with the provisions of the Uniform Licensing Act;

B. provide for the evaluation of the qualifications of applicants for licensure as a massage therapist or registration as a massage therapy school under the Massage Therapy Practice Act;

C. provide for the issuance of massage therapist licenses [or registrations] to applicants who meet the requirements of the Massage Therapy Practice Act;

D. establish minimum curricula for massage therapy schools and provide for the issuance and revocation of massage therapy school registrations;

E. establish instructor qualifications for hands-on massage therapy instruction within the minimum curricula;

[D.] F. provide for the inspection, when required, of the business premises of any licensee or registrant during regular business hours;

[E.] G. establish minimum training and educational standards for licensure as a massage therapist; [or registration as a massage therapy instructor;

F.] H. pursuant to the Uniform Licensing Act, conduct hearings on charges against applicants or licensees [or registrants] and take actions described in Section 61-1-3 NMSA 1978;

[G.] I. bring an action for injunctive relief in district court seeking to enjoin a person from violating the provisions of the Massage Therapy Practice Act;

[H.] J. 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.] K. adopt an annual budget;

[J.] L. adopt a code of professional conduct for massage therapists;

[K.] M. provide for the investigation of complaints against licensees and registrants; and

[L.] N. publish at least annually combined or separate lists of licensed massage therapists [registered massage therapy instructors] and registered massage therapy schools."

SECTION 5. 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 OF MASSAGE THERAPISTS [AND REGISTRATION OF MASSAGE THERAPY INSTRUCTORS].--

A. The board shall issue a license to practice massage therapy to any [person] individual 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; and

(3) has completed at least six hundred fifty hours [in length] of education that includes at least five hundred hours of massage therapy instruction.

[B. The board shall register as a massage therapy instructor any applicant who:

(1) is currently licensed as a massage therapist; and

(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.] B. 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 6. Section 61-12C-13 NMSA 1978 (being Laws 1991, Chapter 147, Section 13, as amended) is amended to read:

"61-12C-13. EXAMINATIONS.--

A. The board shall establish by rule the required examinations for licensure as a massage therapist and the procedures for taking and retaking 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."

SECTION 7. 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. Except as provided for initial licensure in Subsection B of Section 61-12C-9 NMSA 1978, massage therapy licenses [and massage therapy instructor registrations] shall expire biennially. [Massage therapy school registrations shall expire annually.] Expiration dates shall be established by rule.

B. The board may establish continuing [educational] education requirements as a condition of the renewal of massage therapy licenses [and massage therapy instructor registrations].

C. All courses offered by continuing education providers shall be acceptable to meet continuing education requirements regardless of the location where the course is offered.

D. A continuing education provider who is an individual who was an active New Mexico registered independent massage therapy instructor on the effective date of this 2019 act shall submit to the board a syllabus and one-time fee for any course not previously approved by the board.

E. Within thirty days of application, the board may approve or deny the application of an individual who is not a continuing education provider to offer a particular continuing education course; provided that the individual submits:

(1) a copy of any relevant license;

(2) proof of a minimum of two years' experience in the area of instruction;

(3) a course syllabus for the proposed course;

(4) a resume; and

(5) a one-time fee to be determined by the board by rule.

[C.] F. A license [or registration] shall be renewed by submitting a renewal application on a form provided by the board.

[D.] G. A sixty-day grace period shall be allowed each [license or registration holder] licensee 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 8. Section 61-12C-18 NMSA 1978 (being Laws 1991, Chapter 147, Section 18, as amended) is amended to read:

"61-12C-18. INACTIVE STATUS.--

A. 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] licensee wishes to resume practice, the [board shall be notified] licensee shall notify the board in writing, and, upon proof of completion of any continuing education or refresher courses prescribed by 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 9. Section 61-12C-21 NMSA 1978 (being Laws 1991, Chapter 147, Section 21, as amended) is amended to read:

"61-12C-21. ADVERTISING.--A massage therapist [massage therapist instructor] or massage therapy school [licensed or registered pursuant to the Massage Therapy Practice Act] shall include the number of the license or registration and the designation as a "licensed massage therapist" ["registered massage therapy instructor"] or "registered massage therapy school" in any advertisement of massage therapy services as established by board rule."

SECTION 10. 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. Pursuant to the Uniform Licensing Act, the board may take disciplinary action against [a person] an individual licensed [or registered] pursuant to the Massage Therapy Practice Act.

B. The board has authority to take an action set forth in 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;

(2) attempted to use as [his] the licensee's own the license [or registration] of another;

(3) allowed the use of [his] the licensee's license [or registration] by another;

(4) has been adjudicated as mentally incompetent by regularly constituted authorities;

(5) has been convicted of [any offense punishable by incarceration in a state penitentiary or federal prison] a crime that substantially relates to the qualifications, functions or duties of a massage therapist. 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] an unlicensed [or unregistered person] individual in the practice of massage therapy;

(10) is grossly negligent or incompetent in the practice of massage therapy;

(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 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.

C. Disciplinary proceedings may be instituted by sworn complaint of any [person] individual, including members of the board, and shall conform with the provisions of the Uniform Licensing Act.

D. The board [may] shall establish the guidelines for the disposition of disciplinary cases. 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].

E. [License and registration holders] Licensees who have been found culpable and sanctioned by the board shall be responsible for the payments of all costs of the disciplinary proceedings."

SECTION 11. Section 61-12C-27 NMSA 1978 (being Laws 1993, Chapter 173, Section 20, as amended) is amended to read:

"61-12C-27. OFFENSES--CRIMINAL PENALTIES.--[A person] An individual 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 or instruction as a massage therapy school] 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] the individual is a massage therapist [massage therapy instructor] or massage therapy school unless [he] the individual holds a current valid license or registration issued by the board."

SECTION 12. A new section of the Massage Therapy Practice Act is enacted to read:

"[NEW MATERIAL] MASSAGE THERAPY SCHOOL REGISTRATION, RENEWAL, SUSPENSION AND REVOCATION.--

A. A person shall not maintain, manage or operate a massage therapy school offering education, instruction or training in massage therapy unless the school is a registered massage therapy school.

B. Massage therapy school registrations shall expire annually. Expiration dates shall be established by rule of the board.

C. A registration shall be renewed by submitting a renewal application on a form provided by the board.

D. A sixty-day grace period shall be allowed each registrant after the end of the renewal period, during which time a registration may be renewed upon payment of the renewal fee and a late fee as prescribed by the board.

E. Proceedings to determine whether to suspend or revoke the registration of a massage therapy school may be instituted by sworn complaint of any individual, including members of the board, and shall conform with the provisions of the Uniform Licensing Act."

SECTION 13. A new section of the Massage Therapy Practice Act is enacted to read:

"[NEW MATERIAL] DENIAL OF LICENSE.--

A. Pursuant to the Uniform Licensing Act, the board may deny the issuance of a massage therapist license to an applicant.

B. The board has authority to take an action set forth in Section 61-1-3 NMSA 1978 upon a finding by the board that the applicant:

(1) is guilty of fraud, deceit or misrepresentation;

(2) attempted to use as the applicant's own the license of another;

(3) allowed the use by another of the applicant's license issued in another jurisdiction;

(4) has been adjudicated as mentally incompetent by regularly constituted authorities;

(5) has been convicted of a crime that substantially relates to the qualifications, functions or duties of a massage therapist. 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 the practice of massage therapy in New Mexico without a New Mexico license;

(10) is grossly negligent or incompetent in the practice of massage therapy;

(11) has had a license 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 applicant similar to acts described in this section. A certified copy of the record of conviction shall be conclusive evidence of 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."

SECTION 14. A new section of the Massage Therapy Practice Act is enacted to read:

"[NEW MATERIAL] SCOPE OF PRACTICE.--The practice of massage therapy consists of the assessment of the soft tissue structures of the body; the treatment and prevention of physical dysfunction and pain of soft tissue; and joint movement within normal physiologic range of motion to relieve pain or to develop, maintain, rehabilitate or augment physical function."

SECTION 15. EMERGENCY.--It is necessary for the public peace, health and safety that this act take effect immediately.

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