HOUSE BILL 155
54th legislature - STATE OF NEW MEXICO - second session, 2020
INTRODUCED BY
Linda M. Trujillo
AN ACT
RELATING TO OCCUPATIONAL LICENSING; REQUIRING LICENSURE OF ESTABLISHMENTS WHERE MASSAGE THERAPY IS OFFERED OR PERFORMED; ADDING A DEFINITION; PROVIDING A PENALTY.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO:
SECTION 1. A new section of the Massage Therapy Practice Act is enacted to read:
"[NEW MATERIAL] REQUIREMENTS FOR REGISTRATION OF MASSAGE THERAPY ESTABLISHMENTS.--
A. The board shall establish by rule procedures for the licensure of massage therapy establishments and shall issue a license to massage therapy establishments that meet the 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 health and safety for massage therapy establishments."
SECTION 2. A new section of the Massage Therapy Practice Act is enacted to read:
"[NEW MATERIAL] MASSAGE THERAPY ESTABLISHMENT LICENSURE, RENEWAL, SUSPENSION AND REVOCATION--APPLICABILITY.--
A. On or after January 1, 2021, a person shall not maintain, manage or operate a massage therapy establishment unless the establishment is a licensed massage therapy establishment.
B. Massage therapy establishment licenses shall expire biennially. Expiration dates shall be established by rule of the board.
C. A license 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 licensee after the end of the renewal period, during which time a license 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 license of a massage therapy establishment 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 3. 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] February 4, 2019;
(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;
D. "department" means the regulation and licensing department;
E. "jurisprudence" means the statutes and rules of the state pertaining to the practice of massage therapy;
F. "massage therapist" means an individual licensed to practice massage therapy pursuant to the Massage Therapy Practice Act;
G. "massage therapy" or "massage" 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 or massage therapy include [massage] therapeutic massage, body massage, myomassage, bodywork, body rub or any derivation of those terms. "Massage" or "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]
H. "massage therapy establishment" or "massage establishment" means a place of business in which massage or massage therapy is offered or performed; and
[H.] I. "massage therapy school" means a facility providing an educational program in massage therapy that is registered with the board."
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, massage therapy establishment or registration as a massage therapy school under the Massage Therapy Practice Act;
C. provide for the issuance of massage therapist licenses 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 minimum standards for massage therapy establishments and provide for the issuance and revocation of massage therapy establishment licenses;
[E.] F. establish instructor qualifications for hands-on massage therapy instruction within the minimum curricula;
[F.] G. provide for the inspection, when required, of the business premises of any licensee or registrant during regular business hours or posted hours of operation;
[G.] H. establish minimum training and educational standards for licensure as a massage therapist;
[H.] I. pursuant to the Uniform Licensing Act, conduct hearings on charges against applicants or licensees and take actions described in Section 61-1-3 NMSA 1978;
[I.] J. bring an action for injunctive relief in district court seeking to enjoin a person from violating the provisions of the Massage Therapy Practice Act;
[J.] K. 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;
[K.] L. adopt an annual budget;
[L.] M. adopt a code of professional conduct for massage therapists;
[M.] N. provide for the investigation of complaints against licensees and registrants; and
[N.] O. publish at least annually combined or separate lists of licensed massage therapists and registered massage therapy schools."
SECTION 5. Section 61-12C-17 NMSA 1978 (being Laws 1991, Chapter 147, Section 17, as amended) is amended to read:
"61-12C-17. LICENSE RENEWAL--CONTINUING EDUCATION.--
A. Except as provided for initial licensure in Subsection B of Section 61-12C-9 NMSA 1978, massage therapy licenses shall expire biennially. Expiration dates shall be established by rule.
B. The board may establish continuing education requirements as a condition of the renewal of massage therapy licenses.
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] February 4, 2019 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.
F. A license shall be renewed by submitting a renewal application on a form provided by the board.
G. A sixty-day grace period shall be allowed each licensee after the end of the renewal period, during which time a license may be renewed upon payment of the renewal fee and a late fee as prescribed by the board."
SECTION 6. Section 61-12C-18 NMSA 1978 (being Laws 1991, Chapter 147, Section 18, as amended) is amended to read:
"61-12C-18. LICENSE RENEWAL--INACTIVE STATUS.--
A. A massage therapy license 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 has not been reactivated, it shall automatically expire.
B. If within a period of two years from the date the license was placed on inactive status the licensee wishes to resume practice, the 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 shall be restored in full.
C. A massage therapy establishment license 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 has not been reactivated, it shall automatically expire.
D. If within a period of two years from the date the license was placed on inactive status the licensee wishes to resume maintenance, management or operation of the massage therapy establishment, the licensee shall notify the board in writing, and, upon proof of compliance with health and safety standards prescribed by rule of the board and payment of an amount set by the board in lieu of all lapsed renewal fees, the license shall be restored in full."
SECTION 7. Section 61-12C-24 NMSA 1978 (being Laws 1991, Chapter 147, Section 24, as amended) is amended to read:
"61-12C-24. SUSPENSION, REVOCATION AND REINSTATEMENT OF LICENSES.--
A. Pursuant to the Uniform Licensing Act, the board may take disciplinary action against an individual licensed 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:
(1) is guilty of fraud, deceit or misrepresentation;
(2) attempted to use as the licensee's own the license of another;
(3) allowed the use of the licensee's license by another;
(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 an unlicensed individual in the practice of massage therapy;
(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 licensee similar to acts described in this section. A certified copy of the [record of conviction] order of revocation, suspension or denial shall be conclusive evidence of the [conviction] revocation, suspension or denial; [or]
(12) performs massage therapy at or maintains, manages or operates a massage therapy establishment that is not licensed pursuant to the Massage Therapy Practice Act; or
[(12)] (13) 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 individual, including members of the board, and shall conform with the provisions of the Uniform Licensing Act.
D. The board shall establish the guidelines for the disposition of disciplinary cases. Guidelines may include minimum and maximum fines, periods of probation, conditions of probation or reissuance of a license.
E. 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 8. Section 61-12C-24.1 NMSA 1978 (being Laws 2019, Chapter 40, Section 13) is amended to read:
"61-12C-24.1. DENIAL OF LICENSE.--
A. Pursuant to the Uniform Licensing Act, the board may deny the issuance of a massage therapist license or a massage therapy establishment 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] order of revocation, suspension or denial shall be conclusive evidence of the [conviction] revocation, suspension or denial; [or]
(12) has performed massage therapy at or has maintained, managed or operated a massage therapy establishment that is not licensed pursuant to the Massage Therapy Practice Act; or
[(12)] (13) 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 9. 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.--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 without the required current valid license issued by the board; [or]
C. maintains, manages or operates a massage therapy establishment that is not licensed pursuant to the Massage Therapy Practice Act; or
[C.] D. advertises or uses a designation, diploma or certificate implying that the individual is a massage therapist or massage therapy school unless the individual holds a current valid license or registration issued by the board."
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