Bill Summary – FastDemocracy

WEST VIRGINIA LEGISLATURE
REGULAR SESSION
               ENROLLED
        Committee Substitute for Senate Bill 665
               By Senator Rucker [Passed March 10, 2023; in effect 90 days from passage]
     Enr CS for SB 665
  AN ACT to amend and reenact §30-37-2 and §30-37-7 of the Code of West Virginia, 1931, as
         amended; and to amend said code by adding thereto a new section, designated §30-37-
         13, all relating to licensure requirements; amending the required hours of coursework for
         therapist licensure; defining terms; requiring a license to operate a massage
         establishment; providing establishment license requirements; prohibiting certain acts;
         providing for massage establishment licensure renewal, suspension, and revocation;
         specifying exemptions; requiring certain establishment licensees to have continuing
         education; and providing emergency rule-making authority.
     Be it enacted by the Legislature of West Virginia:
     ARTICLE 37. MASSAGE THERAPISTS.
     §30-37-2. Definitions.
         (a) "Board" means the West Virginia Massage Therapy Licensure Board.
         (b) "Massage therapist" means a person licensed to practice the health care service of
  massage therapy under this article who practices or administers massage therapy to a client of
  either gender for compensation. No person licensed by the massage therapy licensure board may
  be referred to as a primary care provider nor be permitted to use such designation.
         (c) "Massage therapy" means a health care service which is a scientific and skillful
  manipulation of soft tissue for therapeutic or remedial purposes, specifically for improving muscle
  tone, circulation, promoting health and physical well-being. Massage therapy includes massage,
  myotherapy, massotherapy, bodywork, bodywork therapy, or therapeutic massage including
 hydrotherapy, superficial hot and cold applications, vibration and topical applications or other
 therapies which involve manipulation of the muscle and connective tissue of the body, for the
 purpose of enhancing health, reducing stress, improving circulation, aiding muscle relaxation,
 increasing range of motion, or relieving neuro-muscular pain. Massage therapy does not include
 diagnosis or service which requires a license to practice medicine or surgery, osteopathic
 medicine, chiropractic, or podiatry, and does not include service performed by nurses,
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 occupational therapists, or physical therapists who act under their own professional license,
 certificate or registration.
         (d) "Massage establishment" means a place of business wherein massage therapy is
 practiced, with a physical site or premise, including mobile sites, licensed as required by this
 article, in which licensed massage therapists are employees or contractors practicing massage
 therapy on clients.
         (e) "Sole practitioner" means a licensed massage therapist who is licensed pursuant to this
 article, who is not an employee or contractor of the sole practitioner or an establishment, and who
 provides massage therapy to clients at a specific location including, but not limited to, a rental
 space, home office space, offsite, or onsite space.
     §30-37-7. Requirements for licensure; renewal of licenses; reinstatement; penalties.
          (a) The board shall propose rules for legislative approval in accordance with §29A-3-1 et
  seq. of this code, establishing a procedure for licensing of massage therapists. License
  requirements shall include the following:
          (1) Completion of a program of massage education at a school approved by the West
  Virginia Council for Community and Technical College Education pursuant to §18B-2B-9 of this
  code or by a state agency in another state, the District of Columbia or a United States territory
  which approves educational programs and which meets qualifications for the National Certification
  Exam administered through the National Certification Board for Therapeutic Massage and
  Bodywork (NCBTMB) prior to February 1, 2015, the massage and bodywork licensing
 examination administered through the Federation of State Massage Therapy Boards (FSMTB)
 and any other board approved examination. This school shall require a diploma from an accredited
 high school, or the equivalent, and on July 1, 2023, upon adoption of the amendments to this
 section during the regular session of the Legislature, 2023, require completion of at least 625
 hours of supervised academic instruction;
         (2) Successful completion of the National Certification for Therapeutic Massage and
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 Bodywork (NCTMB) examination, the Massage and Bodywork Licensing Examination (MBLEx),
 or any other board approved examination; and
         (3) Payment of a reasonable fee every two years required by the board which shall
 compensate and be retained by the board for the costs of administration.
         (b) A license to practice massage therapy issued by the board prior to July 1, 2006, shall
 for all purposes be considered a license issued under this section: Provided, That a person holding
 a license to practice massage therapy issued prior to July 1, 2006, must renew the license
 pursuant to the provisions of this article: Provided, however, That a person whose license was
 issued by the board prior to July 1, 2006, and whose license subsequently lapses may, in the
 discretion of the board, be subject to the licensing requirements of this section.
         (c) In addition to provisions for licensure, the rules shall include:
         (1) Requirements for completion of continuing education hours conforming to NCBTMB,
 FSMTB, or board approved guidelines; and
         (2) Requirements for issuance of a reciprocal license to licensees of states with
 requirements which may include the successful completion of the NCTMB examination, MBLEx,
 or any other board approved examination.
         (d) Subject to the provisions of subsection (b) of this section, the board may deny an
 application for renewal for any reason which would justify the denial of an application for initial
 licensure.
         (e) Any person practicing massage therapy during the time his or her license has lapsed is
 in violation of this article and is subject to the penalties provided in this article.
         (f) A massage therapist who is licensed by the board shall be issued a certificate and a
 license number. The current, valid license certificate shall be publicly displayed and available for
 inspection by the board and the public at a massage therapist's work site.
     §30-37-13. Massage establishment license required; exemptions; renewals; suspension and revocation; and emergency rule-making authority.
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           (a) A place of business that is not a sole practitioner, that advertises or offers massage
  therapy or other massage services must be licensed by the board as a massage establishment as
  provided by §30-37-1 et seq. of this code.
           (b) A massage establishment shall employ or contract only with massage therapists
  licensed in this state to perform massage therapy or other massage services. Documentation of
  the employment or contract relationship and verification that the licensed massage therapist is a
  United States citizen or a legal permanent resident with a valid work permit shall be maintained by
  the massage establishment, and shall be made available during any inspection or investigation.
  Required documentation for each person providing massage therapy or other massage services
 shall include:
          (1) A copy of the current active West Virginia massage therapist license;
          (2) Proof of eligibility to work in the United States; and
          (3) If an employee, a completed I-9 form, or if under an independent contractor or contract
 labor agreement, a copy of the contract signed by both the owner or operator of the establishment
 and the licensed massage therapist.
          (c) An adult oriented business may not obtain a license from the board or operate as a
 massage establishment.
          (d) Each applicant for a massage establishment shall:
          (1) Submit a completed application on a board approved form; and
          (2) Pay the appropriate fee as prescribed by the board by legislative rule.
          (e) Exemptions:
          (1) A place of business is not required to hold a massage establishment license under this
 article if:
          (A) The place of business is owned by the federal government, the state, or a political
 subdivision of the state, or otherwise offers massage services as authorized under any other state
 issued professional or occupational license; or
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        (B) At the place of business, a licensed massage therapist practices as a sole practitioner.
        (2) The sole practitioner does not use a business name or assumed name; or
        (3) Uses a business name or an assumed name and provides the massage therapist's full
 legal name or license number in each advertisement and each time the business name or
 assumed name appears in writing.
        (f) A massage establishment license shall be renewed biennially on a form prescribed by
 the board, with the appropriate fee.
        (g) Massage establishment requirements:
        (1) A massage establishment shall post, in a prominent location, the board administered
 establishment license, the state license of each licensed massage therapist employed by the
 establishment, and any business licenses required by any state, municipality or local
 governmental entity.
        (2) Properly maintain and secure for each client the initial consultation documents, all
 session notes, written consent documents, and related billing records; and
        (3) Maintain a current list of all establishment employees and/or contractors on the
 premises at all times which includes:
        (A) The full name; and
        (B) License number and expiration date of the licensed as a massage therapist.
        (h) A massage establishment may not:
        (1) Employ or contract with an individual to perform massage services who is not a
 licensed massage therapist in this state and who is not a United States citizen or a legal resident
 with a valid work permit;
        (2) Allow a nude or partially nude employee to provide massage therapy or other massage
 services to a customer;
        (3) Allow any individual, including a client, license holder, or employee, to engage in sexual
 contact in the massage establishment;
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        (4) Allow any individual, including a license holder, employee, or contract employee, to
 practice massage therapy in the nude or in clothing designed to arouse or gratify the sexual desire
 of any individual; or
        (5) Allow any individual, including a license holder, employee, or contract employee to
 reside on the premises of the massage establishment.
        (i) A licensee of a massage establishment may be disciplined, including the suspension or
 revocation of the license for cause:
        (1) Pursuant to the general provisions of §30-1-1 et seq. and §30-37-1 et seq. of this code;
        (2) For violating any provision of this article;
        (3) For violating any applicable state law, rule, or policy; and
        (4) For violating any applicable local ordinance.
        (j) A license to operate a massage establishment shall be required, starting on October 1,
 2023, upon the enactment of this section by the regular session of the Legislature, 2023.
        (k) All establishment license holders who are not licensed massage therapists, shall,
 beginning July 1, 2025, obtain two hours of continuing education on the laws and rules of massage
 therapy every two years and shall provide the certificate of completion to the board by October 1,
 2025, and with the application for biennial renewal of the establishment license.
        (l) The board shall propose emergency legislative rules pursuant to §29A-3-1 et seq. of
 this code to establish reasonable fees for the licensure of massage establishments, including the
 fee for the establishment license and any establishment inspection fees as deemed necessary by
 the board.
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Statutes affected: 
Introduced Version: 30-37-2, 30-37-7, 30-37-13
Committee Substitute: 30-37-2, 30-37-7, 30-37-13
Engrossed Committee Substitute: 30-37-2, 30-37-7, 30-37-13
Enrolled Committee Substitute: 30-37-2, 30-37-7, 30-37-13