CHAPTER 582

FORMERLY

HOUSE BILL NO. 683

AS AMENDED BY HOUSE AMENDMENT NOS. 1, 2 AND 4

AN ACT TO AMEND CHAPTER 53, TITLE 24 OF THE DELAWARE CODE AND CHAPTERS 88 AND 101. TITLE 29 OF THE DELAWARE CODE RELATING TO MASSAGE.

BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF DELAWARE (Two-thirds of all members elected to each House thereof concurring therein):

Section 1. Amend Title 24 of the Delaware Code by striking Chapter 53 in its entirety and substituting in lieu thereof the following:

"CHAPTER 53. MASSAGE AND BODYWORK

Subchapter 1. Board of Massage and Bodywork

§5301. Objectives.

The primary objective of the Board of Massage and Bodywork. to which all other objectives and purposes are secondary. is to protect the general public. specifically those persons who are the direct recipients of services regulated by this Chapter, from unsafe practices and from occupational practices which tend to reduce competition or for the price of services rendered.

The secondary objectives of the Board are to maintain minimum standards of practitioner competency. and. to maintain certain standards in the delivery of services to the public In meeting its objectives the Board shall develop standards assuring professional competence: shall monitor complaints brought against practitioners regulated by the Board: shall adjudicate at formal hearings: shall promulgate rules and regulations: and shall impose sanctions where necessary against practitioners. both licensed or certified. or formerly licensed or certified

§5302. Definitions.

The following words. terms and phrases. when used in this Chapter shall have the meanings ascribed to them under this Section. except where the contest clearly indicates a different meaning:

(1) 'Board' shall mean the State Board of Massage and Bodywork established in this Chapter.

(2) 'Division' shall mean the Division of Professional Regulation of the Department of Administrative Services of Delaware.

(3) 'Massage and bodywork therapist' shall mean a person who represents himself or herself to the public by any title or description of services incorporating the words 'body work.' 'massage.' 'massage therapist.' 'massage therapy.' 'massage practitioner.' 'massagist.' 'masseur,' 'masseuse.' or who engages in the practice of massage and bodywork fur a tee. monetary or otherwise.

(4) 'Massage technician' shall mean a person. who is certified with the Board to perform certain functions within the practice of massage therapy. and who is authorized by the Board to use any title or description of services incorporating the words 'body is ork: 'massage.' 'massage practitioner.' 'massagist.' 'masseur.' 'masseuse.' or certified massage technician' but shall be prohibited front using the words 'therapist' or 'therapy'.

(5) 'Person' shall mean a corporation, company. association and partnership. as well as an individual.

(6) 'Practice of massage and bodywork* shall mean a system of structured touch applied to the superficial or deep tissue, muscle, or connective tissue. by applying pressure with manual means. Such application may include. but is not limited to. friction. gliding. -rocking. tapping. kneading. or nonspecific stretching. whether or not aided by massage oils or the application of hot and cold treatments. The practice of massage and bodywork is designed to promote general relaxation. enhance circulation. improve joint mobilization and/or relies e stress and muscle tension. and to promote a general sense of well-being.

The practice of massage and bodywork excludes_ actions be any person. who is certified or licensed in this State by an) other law. and who is engaged in the profession or occupation for which he or she is certified or licensed: and actions b) any person engaged in an occupation which does not require a certificate or certification. including. but not limited to. physical education teachers. athletic couches. health or recreation directors. instructors at health clubs or spas. martial ans, water satin) and dance instructors, or coaches and practitioners of techniques. who are acting within the scope of activity for which they are trained: or students of massage who are practicing within the scope of their course of stud).

(7) 'State' means any state of the United States. the District of Columbia. Puerto Rico. the U.S Virgin Islands. and Guam: except that 'this State' means the State of Delaware.

§5303. Board of Massage and Bodywork appointments: qualifications term: vacancies, suspension or removal; unexcused absences compensation.

(a) There is created a state Board of Massage and Body work. which shall administer and enforce this Chapter.

(b) The Board shall consist of 7 members appointed by the Governor. who are residents of this state two of whom shall he massage and bodywork therapists licensed under this Chapter: Iwo shall be massage technicians, certified under this Chapter: and three shall be members of the public The public members shall not be. Nor ever have been. massage and bodywork therapists. massage technicians, nor members of the immediate family of a massage and bodywork therapist of massage technician: shall not hake been employed by a massage and bodywork therapist or massage technician: shall not hate a material interest in the providing of goods and services to massage. and bodywork therapists or massage technicians: nor have been engaged in an (tens its direct!) related to massage. I he public members shall be accessible to inquiries, comments and suggestions from the general public

(c) Except as provided in subsection (d) of this Section. each member shall sent a term of 3 years. And may succeed himself or herself for one additional term. provided. however. that where .1 member was initially appointed to fill a vacancy . such member may succeed himself or herself for only one additional full term. Any person appointed to fill a vacancy on the Board shall hold office for the remainder of the unexpired term of the former member. Mach term of office shall expire on the date specified in the appointment: however. the hoard member shall remain eligible to participate in Board proceedings unless and until replaced by the Governor.

(d) A person who has never served on the Board may he appointed to the Board for 2 consecutive terms: but. no such person shall thereafter he eligible for 2 consecutive appointments to the hoard. No person. w Ito has been mice appointed to the Board or who has served on the Board for six years within any 9-year period. shall again he appointed to the Board until an interim period of at least 1 year has expired since such person last served.

(e) Members of the initial Board shall be appointed by the Governor such that one massage and bodywork Mewls', one massage technician. and one public member shall serve a term of 3 years: one massage and body work therapist. one massage technician and one public member shall serve a term of 2 years: and one public member shall serve a term of 1 year.

(f) Any act or vote by a person appointed in violation of this Section shall he invalid. An amendment or revision of this Chapter is not sufficient cause for an) appointment or attempted appointment in violation of subsection (d) of this Section, unless such an amendment or revision amends this Section to permit such an appointment.

(g) A member of the Board shall be suspended or removed by the Governor for misfeasance, nonfeasance, malfeasance, misconduct, incompetency or neglect of duty. A member subject to disciplinary hearing shall be disqualified from Board business until the charge is adjudicated or the matter is otherwise concluded. A Board member may appeal any suspension or removal to the Superior Court.

(h) No member of the Board, while serving on the Board, shall hold elective office in any professional association of massage or bodywork practitioners.

(i) The provisions set forth for 'employees' in Chapter 58, Title 29 of the Delaware Code shall apply to all members of the Board, and to all agents appointed or otherwise employed by the Board.

(j) Any member who is absent without adequate reason for 3 consecutive meetings, or fails to attend at least half of all regular business meetings during any calendar year, shall be guilty of neglect of duty and automatically shall be considered to have resigned from the Board.

(k) Each member of the Board shall be reimbursed, according to Division policy, for all expenses involved in each meeting, including travel; and, in addition, shall receive not more than $50 for each meeting attended but not more than $500 in any calendar year. After 10 meetings have been attended, the member shall not be compensated for any subsequent meetings attended in that year.

§5304. Organization; meetings; officers; quorum.

(a) The Board shall hold regularly scheduled business meetings at least once in each quarter of a calendar year, and at such times as the President deems necessary; or, at the request of a majority of the Board members.

(b) The Board shall elect, in the same month of each year, a president, vice-president and secretary. Each officer shall serve for I year, and may succeed himself or herself for one additional term.

(c) A majority of the members shall constitute a quorum for the purpose of transacting business. A quorum of four members of the Board is required to certify and license applicants. or to suspend or revoke a license. All other actions will be by simple majority vote.

(d) Minutes of all meetings shall be recorded, and copies shall be maintained by the Division At any hearing where evidence is presented, a record from which a verbatim transcript can be prepared shall be made. The expense of preparing any transcript shall be incurred by the person requesting it.

§5305. Records.

The Division shall keep a register of all approved applications for license as massage and bodywork therapist and for certification as massage technician, and complete records relating to meetings of the Board, examinations, rosters, changes and additions to the I3oard's rules and regulations, complaints, hearings and such other matters as the Board shall determine. Such records shall be prima facie evidence of the proceedings of the Board.

§5306. Powers and duties.

(a) The Board of Massage and Bodywork shall have authority to:

(1) Formulate rules and regulations, with appropriate notice to those affected; all rules and regulations shall be promulgated in accordance with the procedures specified in the Administrative Procedures Act of this State. Each rule or regulation shall implement or clarify a specific Section of this Chapter.

(2) Designate the application form to he used by all applicants, and process all applications;

(2) Designate the written examination to be taken by all persons applying for licensure as massage and bodywork therapists, subject to approval by the Director of the Division; applicants who qualify for licensure as massage and bodywork therapists by reciprocity shall have achieved a passing score on the written examination. Those practitioners currently certified in this State who have successfully passed the written examination shall not be required to retake the written examination when applying for licensure as massage and bodywork therapists.

(3) If the examination is not otherwise available, to provide for the administration of all examinations. including notice and information to applicants. The Board shall adopt a nationally-prepared and administered massage and bodywork therapy examination, subject to approval by the Director of the Division;

(4) Evaluate the credentials of all persons applying for a license to practice massage and bodywork therapy in Delaware and of all persons applying for certification as massage technicians, in order to determine whether such persons meet the qualifications fbr licensing or certification set forth in this Chapter;

(5) Grant licenses to, and renew licenses and certifications of, all persons who meet the qualifications for licensure and/or renewal of licenses; and grant certificates to persons who meet the qualifications for massage technicians;

(7) Establish by rule and regulation continuing education standards required for license and certificate renewal;

(8) Evaluate certified records to determine whether an applicant for licensure or
certification, who previously has been licensed, certified, or registered in another jurisdiction to practice massage and/or bodywork. has engaged in any act or offense that would be grounds for disciplinary action under this Chapter; and whether there are disciplinary proceedings or unresolved complaints pending against such applicants for such acts or offenses:

(8) Refer all complaints from licensees and the public concerning licensed massage and bodywork therapists and certified massage technicians, or concerning practices of the Board or of the profession, to the Division for investigation pursuant to §8810. Chapter 88 of 'Fitle 29 of the Delaware Code; and, assign a member of the Board to assist the Division in an advisory capacity with the investigation of the technical aspects of the complaint;

(10) Conduct hearings and issue orders in accordance with procedures established pursuant to this Chapter. Chapter 101 of Title 29 of the Delaware Code, and §8810, Chapter 88 or rifle 29 of the Delaware Code. Where such provisions conflict with the provisions of this Chapter. this Chapter shall govern. The Board shall determine whether or not a massage and bodywork therapist or massage technician shall be subject to a disciplinary hearing, and if so. shall conduct such hearing in accordance with this Chapter and the Administrative Procedures Act.

(11) When it has been determined. after a disciplinary hearing, that penalties or sanctions should be imposed. to designate and impose the appropriate sanction or penalty after time for appeal has lapsed.

Subchapter II. License and Registration

§5307. License;certification required.

(a) No person shall engage in the practice of massage and bodywork therapy or hold himself or herself out to the public in this State as being qualified to practice massage and bodywork therapy; or use in connection with his or her name, or otherwise assume or use, any title or description conveying or tending to convey the impression that he or she is qualified to practice massage and bodywork therapy, unless such person has been duly licensed or certified under this Chapter. Massage and bodywork therapists may not treat the medically diagnosed conditions.

(b) Whenever a license to practice as a massage and bodywork therapist in this state has expired or been suspended or revoked. it shall be unlawful for the person to practice massage and bodywork therapy in this Stale.

(c) No person shall act as a massage technician, or hold himself or herself out as a massage technician. unless such person has been duly certified by the Board under this Chapter Massage technicians shall practice massage and/or bodywork on other than medically diagnosed conditions.

§5308. Qualifications of applicant, report to Attorney general; judicial review

(a) An applicant who is applying for licensers as a massage and bodywork therapist under this Chapter shall submit evidence, verified by oath and satisfactory to the Board, that such person:

(1) has completed 500 hours of supervised in-class study as a student in a school which trains massage or bodywork therapists, or as a student in an approved program of massage or bodywork therapy: the school or program of training must include a curriculum of no less than:

(a) 100 hours of anatomy and physiology:

(b) 300 hours of technique and theory of massage or bodywork therapy:

(c) 100 hours of elective courses in the field of massage therapy:

(2) has achieved the passing score on a written. standardized, nationally-prepared and administered examination in massage or bodywork therapy, the passing score shall be as established by the testing agency. If the testing agency has not established a passing score, the Board in conjunction with the Division shall establish the passing score:

(3) has passed a state-certified examination in cardiopulmonary resuscitation (CPR) training: and possesses current CPR certification. An exception from current CPR certification shall be allowed the persons who hate lower limb amputee status.

(4) has not engaged in any of the acts or offenses that would he ground, to, disciplinary action under this Chapter: and. has no disciplinary proceedings or unresolved complaints pending against him or her in any jurisdiction where the applicant has pre% must) been or currently is licensed to practice massage and/or bodywork therapy.

(5) Foreign-trained applicants must provide evidence of training and supervision essentially comparable to that cited in paragraph (1).

(b) Where the Board has found to its satisfaction that an application has been intentionally fraudulent. or that false information has been intentionally supplied. it shall report its findings to the Attorney General for further action,

(c) Where the application of .1 person has been refused or rejected and such applicant feels thin the Board has acted without justification: has imposed higher or different standards for him or her than for other applicants or licensees: or has in some other manner contributed to 01 caused the failure of such application. the applicant may appeal to the Superior Court,

§5309. Qualifications of Applicants for certification as Massage Technicians.

(a) An applicant who is applying for certification as a massage technician under this Chapter shall submit evidence verified by oath and satisfactory to the Board that such person:

(1) has completed, as a minimum, a 100-hour course of supervised in-class study or massage;

(2) has passed a state-certified examination in cardio-pulmonary resuscitation (CPR) training: and possesses current CPR certification. An exception from current CPR certification shall he allowed for persons who have lower limb amputee status: and

(3) has not engaged in any of the acts or offenses that would he grounds for disciplinary' action under this Chapter: and, has no disciplinary proceedings or unresolved complaints pending against him or her in any jurisdiction where the applicant previously has been or currently is licensed, certified. or registered as a massage technician or massage or bodywork therapist.

(b) Where the Board has found to its satisfaction that an applicant has been intentionally. fraudulent. or that false information intentionally has been supplied. it shall report its findings to the Attorney General for further action.

(c) Where the application of a person has been refused or rejected and such applicant feels that the hoard has acted without justification. has imposed higher or different standards for hint or her than for other applicants or Licensees: or has in some way contributed to or caused the failure of such application. the applicant may appeal to the Superior Court.

§5310. Reciprocity.

Where an applicant is currently licensed or certified as a massage and/or bodywork therapist or Massage technician. or is licensed or certified under any other title which indicates such person- practices massage and/or bodywork, in another jurisdiction. and has practiced continually fur too tears in that jurisdiction. in lieu of all other requirements for licensure and certification under this Chapter. the Board shall accept a certificate or other evidence that the applicant is currently licensed or certified in that jurisdiction, has practiced continually for two years, and. in addition, for an applicant !Or licensure as massage and bodywork therapist. has achieved the passing score on the written national examination.

Upon receipt of an application from an applicant who has been or oho currently is licensed, certified, or registered as a massage and/or bodywork therapist or massage technician in .mother jurisdiction. the applicant is responsible for contacting, the licensing authority. or comparable agency. in such other jurisdictions and requesting that a certified statement he sent directly to the hoard by the licensing authority. which shall certify that there are no disciplinary proceedings or unresolved complaints pending against the applicant; and whether the applicant Its engaged in any of the acts or offenses that would he grounds linr disciplinary action under this Chapter. lit the event that a disciplinary proceeding or unresolved complaint is pending. the applicant shall not he licensed until the proceeding or complaint has been resolved. Applicants for licensure to practice massage and bodywork therapy in this State shall lie deemed to have given consent to the release of such information and to oak e all objections to the admissibility of such evidence.

§5311. Fees.

The amount to be charged for each fee imposed under this Chapter shall approximate and occasionally reflect all costs necessary to defray the expenses of the Board. as well as the proportional expenses incurred by the Division of Professional Regulation in its service on behalf of the board. There shall he a separate fee charged for each service or activity. but no fee shall he charged for a purpose not specified in this Chapter. The application fee shall not he combined with any other fee or charge. At the beginning of each calendar year, the Division of Professional Regulation, or any other state agency acting in its behalf, shall compute, for each separate service or activity, the appropriate Board fees for the coming year.

§5312 Issuance and renewal of licenses; certification.

(a) The hoard shall issue a license or certificate to each applicant who meets the requirements of this Chapter for licensure as a massage or bodywork therapist or certification as a massage technician and who pays the fee established under §5311 of this Title.

(b) Each license or certificate shall be renewed biennially, in such manner as is determined by the Division of Professional Regulation, and upon payment of the appropriate fee and submission of a renewal form provided by the Division of Professional Regulation, and proof that the licensee or certificant has met the continuing education requirements established by the Board.

(c) The Board, in its rules and regulations, shall determine the period of time within which a licensed massage or bodywork therapist or certified massage technician may still renew such license or certificate, notwithstanding the fact that such licensee or certificant has failed to renew on or before the renewal date.

§5313. Grounds for refusal, revocation or suspension of licenses and certificates.

(a) A practitioner licensed or certified under this Chapter shall be subject to disciplinary actions set forth in §5315 of this Title, if, after a hearing, the Board finds that the massage or bodywork therapist or massage technician:

(1) Has employed or knowingly cooperated in fraud or material deception in order to acquire a license as a massage or bodywork therapist or certification as a massage technician; has impersonated another person holding a license or certification, or allowed another person to use the massage or bodywork license or massage technician certification, or aided or abetted a person not licensed as a massage or bodywork therapist or certified as a massage technician to represent that person as a massage or bodywork therapist or massage technician;

(2) Has been convicted of any felony or misdemeanor sexual offense under State law, federal law, or the law of another jurisdiction, and which has a rational connection with the applicant's or licensees or certificate holder's fitness or capacity to practice the profession;

(3) Has excessively used or abused drugs (including alcohol, narcotics or chemicals);

(4) Has violated a lawful provision of this Chapter, or any lawful regulation established thereunder;

(5) Has had his or her license as a massage or bodywork therapist or his or her certificate as massage technician suspended or revoked, or other disciplinary action taken by the appropriate licensing authority in another jurisdiction; provided, however, that the underlying grounds for such action in another jurisdiction have been presented to the Board h) certified record; and the Board has determined that the facts found by the appropriate authority in the other jurisdiction constitute one or more of the acts defined in this Chapter. livery person licensed as a massage or bodywork therapist or certified as a massage technician in this State shall be deemed to have given consent to the release of this information by the Board of Massage and Bodywork Therapy or other comparable agencies in -another jurisdiction and to waive all objections to the admissibility of previously adjudicated evidence of such acts or offenses:

(7) Has failed to notify the Board that his or her license as a massage or bodywork therapist or certificate as 'massage technician in another state has been subject to discipline, or has been surrendered, suspended or revoked. A certified copy of the record of disciplinary action, surrender, suspension or revocation shall be conclusive evidence thereof.

(b) Where a practitioner fails to comply with the Board's request that the practitioner attend a hearing, the Board may petition the Superior Court to order such attendance, and the said Court or any judge assigned thereto shall have jurisdiction to issue such order.

(c) Subject to the provisions of this Chapter and subchapter IV of Chapter 101 of Title 29 of the Delaware Code, no license shall be restricted, suspended or revoked by the Board, and no practitioner's right to practice shall be limited by the Board, until such practitioner has been given notice and an opportunity to be heard in accordance with the Administrative Procedures Act.

§5314. Complaints

A practitioner or member of the public desiring to file a complaint against a practitioner or licensee, or certificate holder regulated by the Board shall file a written complaint with the Division of Professional Regulation. All complaints shall be received and investigated by the Division in accordance with the procedures as specified in §8810 of Title 29. The Division shall be responsible for issuing a final written report at the conclusion of the investigation.

§5315. Disciplinary sanctions.

(a) The Board may impose any of the following sanctions, singly or in combination, when it finds that any of the conditions or violations set forth in §5313 of this Title applies to a practitioner regulated by this Chapter.

(1) Issue a letter of reprimand;

(2) Publicly censure a practitioner;

(3) Place a practitioner on probationary status, and require the practitioner to:

a. Report regularly to the Board upon the matters which are the basis of the probation;

b. Limit all practice and professional activities to those areas prescribed by the Board: and/or

c. Continue or renew the practitioner's professional education until the required degree of skill has been attained in those areas which are the

basis of the probation;

(1) Suspend any practitioner's license or certification;

(4) Revoke a practitioner's license or certification.

(b) The Board may withdraw or reduce conditions of probation when it rinds that the deficiencies which required such action have been remedied.

(c) The Board may temporarily suspend a practitioner's license or certification in advance of a final adjudication, during the appeals process, but only in cases where there is a clear and immediate danger to the health, safety and welfare of the public if the licensee or certificant is allowed to continue to practice. Such suspension may be appealed in accordance with the Administrative Procedures Act

(d) Where a licensee or certificant has been suspended due to a disability of the licensee or certiticant, the Board, at a Board meeting, may reinstate such licensee or certificant if the Board is satisfied that the licensee or certificant is able to practice with reasonable skill and safety.

(e) As a condition or reinstatement of a suspended license, or removal from probationary status. the Board may impose such disciplinary or corrective measures as are authorized under this Chapter.

§5316. Hearing Procedures

(a) If a complaint is filed with the Board pursuant to §8810 of Title 29 of the Delaware Code, alleging violation of §5313 of this Title, the Board shall set a time and place to conduct a hearing on the complaint. Notice of the hearing shall be given and the hearing conducted in accordance with the Administrative Procedures Act, Chapter 101 of Title 29 of the Delaware Code.

(b) All hearings shall be informal without use of rules of evidence. If the Board finds, by a majority vote of all members, that the complaint has merit, the Board shall take such action permitted under this Chapter as it deems necessary. The Board's decision shall be in writing and shall include its reasons for such decision. The Board's decision shall he mailed immediately to the practitioner.

(c) Where the practitioner is in disagreement with the action of the Board, the practitioner may appeal the Board's decision to the Superior Court within 30 days of service, or of the postmarked date of the copy of the decision mailed to the practitioner. Upon such appeal the Court shall hear the evidence on the record. Stays shall be granted in accordance with §10144 of Title 29 of the Delaware Code.

§5317. Penalties.

A person not currently licensed as a massage or bodywork therapist or certified as a massage technician, under this Chapter. when guilty of engaging in the practice of massage or bodywork therapy or of practicing as a massage technician, or using in connection with the practitioner's own name, or otherwise assuming or using any title or description conveying, or tending to convey the impression that the practitioner is qualified to practice massage or bodywork therapy, or to act as a massage technician, such offender shall be guilty of a misdemeanor. Upon the first offense, the practitioner shall be fined not less than $100 nor more than $500 for each offense. For a second or subsequent conviction, the fine shall he not less than $500 nor no more than $1.000 for each offense. Superior Court shall have jurisdiction over all violations of this Chapter."

Section 2. Amend paragraph (29). subsection (a). §8810, Chapter 813 of Title 29 of the Delaware Code by striking said paragraph (29) in its entirety. and by adding a new paragraph (29) to read as follows:

"(29) Board of Massage and Bodywork. as set forth in Chapter 53 of Title 24: and"

Section 3. Amend §10161. Chapter 101 or Title 29 of the Delaware Code by adding a new subsection (42) to read as follows:

"(42) Board of Massage and Bodywork;".

Section 4. Amend 810161, Chapter 101 of Title 29 of the Delaware Code by renumbering current subsection (42) as new subsection (43) and renumbering each succeeding subsection accordingly.

Section 5. Rules and Regulations.

Rules and Regulations in effect on the date of enactment of this Act shall remain valid to the extent they are not inconsistent with this Act.

Section 6. Certification of existing state certified massage/bodywork practitioners.

Persons currently certified as massage/bodywork practitioners by the Committee on Massage/Bodywork Practitioners shall automatically he granted status as massage technicians. and during the pendency of their applications shall he permitted to continue in practice until such time as the Board takes action on each practitioner's application.

Section 7. Current members of the Committee on Massage/Bodywork Practitioners.

Members currently serving on the Committee on Massage/Bodywork Practitioners shall continue to serve unless or until replaced by the Governor. The Governor shall appoint new members to the Board to fulfill the requirements of §5304 of this Chapter.

Section 8. Severability.

If any provision of this Act or the application thereof to any person or circumstances is held invalid, the invalidity does not affect other provisions or applications of this Act, which can he given effect without the invalid provisions or applications, and to this end the provisions of this Act are severable.

Approved July 25, 1996