§ 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 fix 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:
(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 State 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 "bodywork," "massage," "massage therapist," "massage therapy," "massage practitioner," "massagist," "masseur," "masseuse," or who engages in the practice of massage and bodywork for a fee, monetary or otherwise.
(4) "Massage establishment" means any place of business that offers the practice of massage and bodywork and where the practice of massage and bodywork is conducted on the premises of the business, or that represents itself to the public by any title or description of services incorporating the words "bodywork," "massage," "massage therapy," "massage practitioner," "massagist," "masseur," "masseuse," or other words identified by the Board in regulation. A "place of business" includes any office, clinic, facility, salon, spa, or other location where a person or persons engage in the practice of massage and bodywork. The residence of a therapist or an out call location which is not owned, rented, or leased by a massage therapist or massage establishment shall not be considered a massage establishment, unless the location is advertised as the therapist's or establishment's place of business. The term "massage establishment" shall not include any "facility" as defined in § 1131(4) of Title 16, any "hospital" as defined in § 1001(3) of Title 16, physician offices, physical therapy facilities, chiropractic offices, or athletic training facilities, whether or not they employ, contract with, or rent to massage therapists, or institutions of secondary or higher education when massage therapy is practiced in connection with employment related to athletic teams or any other business establishment licensed pursuant to another chapter of this title.
(5) "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 "bodywork," "massage," "massage practitioner," "massagist," "masseur," "masseuse," or certified massage technician" but shall be prohibited from using the words "therapist" or "therapy."
(6) "Person" shall mean a corporation, company, association and partnership, as well as an individual.
(7) "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 relieve stress and muscle tension, and to promote a general sense of well-being.
(8) "Professional-in-charge" means a licensee who is responsible for the operation of a massage establishment, including ensuring that all employees are licensed, where required by law.
(9) "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.
(10) "Substantially related" means the nature of the criminal conduct, for which the person was convicted, has a direct bearing on the fitness or ability to perform 1 or more of the duties or responsibilities necessarily related to the practice of massage and bodywork.
§ 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 Bodywork, 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: 4 professional members licensed under this chapter of whom at least 2 but not limited to 2 shall be massage therapists, at least 1 but not limited to 1 of whom shall be a certified massage technician, and 3 of whom shall be public members. The public members shall not be nor ever have been a massage therapist or technician, nor members of the immediate family of a massage therapist or technician, nor have been employed by a massage therapist or technician, nor have a material interest in the providing of goods and services to a massage therapist or technician, nor have been engaged in an activity directly related to massage. The 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 serve a term of 3 years, and may succeed himself or herself for 1 additional term; provided, however, that where a member was initially appointed to fill a vacancy, such member may succeed himself or herself for only 1 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. Each term of office shall expire on the date specified in the appointment; however, the Board 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 be appointed to the Board for 2 consecutive terms; but, no such person shall thereafter be eligible for 2 consecutive appointments to the Board. No person, who has been twice appointed to the Board or who has served on the Board for 6 years within any 9-year period, shall again be appointed to the Board until an interim period of at least 1 year has expired since such person last served.
(e) Any act or vote by a person appointed in violation of this section shall be invalid. An amendment or revision of this chapter is not sufficient cause for any 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.
(f) 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.
(g) No member of the Board, while serving on the Board, shall hold elective office in any professional association of massage or bodywork practitioners.
(h) The provisions set forth for "employees" in Chapter 58 of Title 29 shall apply to all members of the Board, and to all agents appointed or otherwise employed by the Board.
(i) Any member who is absent without adequate reason for 3 consecutive meetings, or fails to attend at least 1/2 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.
(j) Each member of the Board shall be reimbursed, for all expenses involved in each meeting, including travel, and in addition shall receive compensation per meeting attended in an amount determined by the Division in accordance with Del. Const. art. III, § 9.
§ 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 1 year, and may succeed himself or herself for 1 additional term.
(c) A majority of the members shall constitute a quorum for the purpose of transacting business. The affirmative vote of at least 4 members of the Board is required to certify and license applicants or to discipline a certificate holder or licensee. 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, all approved applications for licenses for massage establishments, and complete records relating to meetings of the Board, examinations, rosters, changes and additions to the Board'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 [Chapter 101 of Title 29]. Each rule or regulation shall implement or clarify a specific section of this chapter;
(2) Designate the application form to be used by all applicants, and process all applications;
(3) 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;
(4) 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;
(5) 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 for licensing or certification set forth in this chapter;
(6) Grant licenses to, and renew licenses and certifications of, all persons who meet the qualifications for licensure and/or renewal of licenses; grant certificates to persons who meet the qualifications for massage technicians; and grant licenses to, and renew licenses for, massage establishments;
(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;
(9) 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 § 8735 of Title 29; 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 and § 8735 of Title 29. 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 [Chapter 101 of Title 29];
(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;
(12) Adopt rules and regulations concerning advertising by massage and bodywork therapists and massage technicians;
(13) Adopt rules and regulations setting forth unprofessional conduct by massage and bodywork therapists and massage technicians;
(14) Adopt, pursuant to the Board's rules and regulations, a client disclosure form, which shall be used by all certified massage technicians. The disclosure shall include, at the minimum, a statement that the person providing services is a certified massage technician, and not a licensed massage and bodywork therapist, and, by law, is not authorized to treat medically diagnosed conditions. The disclosure shall be provided to the client at the first session;
(15) Adopt rules and regulations setting forth the requirements pertaining to the licensure, maintenance, and standards of massage establishments; and
(16) Authorize agents of the Division to inspect any massage establishment.
(b) The Department of Health and Social Services shall have the authority to adopt rules and regulations pertaining to the sanitary controls of massage establishments.
(c) The Board of Massage and Bodywork shall promulgate regulations specifically identifying those crimes which are substantially related to the practice of massage and bodywork.