GENERAL ASSEMBLY OF NORTH CAROLINA

SESSION 1993

H	4 

HOUSE BILL 910
Committee Substitute Favorable 4/29/93
Third Edition Engrossed 5/27/93
Senate Judiciary I Committee Substitute Adopted 7/20/93

Short Title:  Massage Therapy Practice.	(Public)
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Sponsors:
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Referred to:  
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April 13, 1993

A BILL TO BE ENTITLED
AN ACT REGULATING THE PRACTICE OF MASSAGE THERAPY.
The General Assembly of North Carolina enacts:
Section 1.  Chapter 90 of the General Statutes is amended by adding a new Article to read:
"ARTICLE 28.
"Massage Therapy Practice.
"§ 90-410.  Short title.
This article shall be known as the North Carolina Massage Therapy Practice Act.
"§ 90-411.  Declaration of purpose.
The General Assembly recognizes that the improper practice of massage therapy is potentially harmful to the public. Mandatory licensure of those engaged in the  practice of massage therapy is necessary to ensure minimum standards of competency among massage therapists and to protect the health, safety, and welfare of the public.
"§ 90-412.  Definitions.
In this Article, unless the context otherwise requires, the following definitions shall apply:
(1)	'Board' means the North Carolina Board of Massage Therapy.
(2)	'Massage therapy establishment' means any business or establishment where massage therapy is practiced.
(3)	'Massage therapy' means systems of activity applied to the soft tissues of the body for therapeutic, educational, or relaxation purposes.  The application may include (i) pressure, friction, stroking, rocking, tapping, percussion, kneading, and passive or active stretching within the normal physiologic range of movement; (ii) complementary methods including the external application of water, heat, cold, lubricants, or other topical preparations; and (iii) mechanical devices which mimic or enhance the actions possible by the hands.
(4)	'Massage therapist' means a person licensed under this Article.
(5)	'Practice of massage therapy' or 'business of massage therapy' means the application of massage therapy to any person for a fee or other consideration.  The practice does not include the diagnosis of illness or disease, medical procedures, chiropractic adjustment, electrical stimulation, ultrasound, prescription of medications, or the use of modalities for which a license to practice medicine, chiropractic, physical therapy, occupational therapy, acupuncture, or podiatry is required by law.
"§ 90-413.  License required.
(a)	A person shall not practice or hold out to others as a massage therapist without first applying for and receiving from the Board a license to engage in the practice of massage therapy.
(b)	A person holds out to others as a massage therapist when the person adopts or uses any title or description including 'massage therapist,' 'massage practitioner,' 'massagist,' 'masseur,' 'masseuse,' 'myotherapist,' 'body therapist,' 'bodyworker,' or any derivation of those terms that implies the practice of massage therapy.
(c)	It shall be unlawful to advertise the practice of massage therapy using the term 'massage' or any other term that implies a massage technique or method in any public or private publication or communication by a person not licensed by the Board as a massage therapist.  Any person who holds a license to practice as a massage therapist in this State may use the title 'licensed massage therapist' and the abbreviation 'L.M.T.'  No other person shall assume this title or use this abbreviation or any other word, letters, signs, or figures to indicate that the person using the title is a massage therapist.  An establishment employing or contracting with licensed massage therapists may advertise on behalf of therapists.
"§ 90-414.  Exemptions.
(a)	Nothing in this Article shall be construed to prohibit or affect:
(1)	The practice of a profession by persons who are licensed, certified, or registered under other laws of this State and who are performing services within their authorized scope of practice.
(2)	The practice of massage therapy by an individual employed by the government of the United States while the individual is engaged in the performance of duties prescribed by the laws and regulations of the United States.
(3)	The practice of massage therapists duly licensed in another state, territory, or the District of Columbia when incidentally called into this State for consultation with a massage therapist.
(4)	Students enrolled in Board-approved massage therapy programs, while engaged in completing a clinical requirement for graduation that shall be performed under the supervision of a massage therapist.
(5)	A person giving massage to members of that person's immediate family.
(6)	A person employed by a hospital or other health care facility licensed under Article 5 of Chapter 131E of the General Statutes, Part A of Article 6 of Chapter 131E of the General Statutes, or Article 2 of Chapter 122C of the General Statutes.
(7)	The practice of massage therapists employed by nonprofit corporations qualified under 26 U.S.C.§ 501(c) that provide massage therapy as an incidental service available only to dues-paying members and whose primary business is not the practice of massage therapy.
"§ 90-415.  Board of Massage Therapy.
(a)	The North Carolina Board of Massage Therapy is created.  It shall consist of seven members who are residents of this State and who shall be appointed by the Governor. These members shall represent the diversity of disciplines within the profession.  Each member shall reside in a different Congressional district.  Five members shall be massage therapists with at least five years of massage therapy practice in North Carolina and who have been licensed under this Article, except for the initial appointees.  The remaining two members shall be members of the general public, who shall not have been licensed or have any financial interest, direct or indirect, in the profession regulated.  Except as provided for initial appointments, the term of office of each member of the Board shall be three years, ending on June 30.
(b)	The terms of the initial Board members shall be staggered so that the terms of four members shall expire in 1994, and the terms of the remaining three members shall expire in 1995.  A member shall not be appointed to serve more than two consecutive terms.
(c)	The Board shall elect annually a chair and other officers as it deems necessary.  The Board shall meet as often as necessary for the conduct of business but no less than twice a year. The Board shall establish procedures governing the calling, holding, and conducting of regular and special meetings.  A majority of the Board shall constitute a quorum.
(d)	Each member of the Board shall receive per diem and reimbursement for travel and subsistence as set forth in G.S. 93B-5.
"§ 90-416.  Powers and duties.
The Board shall have the following powers and duties:
(1)	Evaluate the qualifications of applicants for licensure as massage therapists.
(2)	Issue, renew, deny, suspend, or revoke licenses to practice massage therapy in this State.
(3)	Reprimand or otherwise discipline licensed massage therapists.
(4)	Conduct investigations to determine whether violations of this Article exist or constitute grounds for disciplinary action against licensed massage therapists.
(5)	Employ professional, clerical, or other special personnel necessary to carry out the provisions of this Article; purchase or rent necessary office space, equipment, and supplies.
(6)	Establish reasonable fees for applications for examination, certificates of licensure and renewal, and other services provided by the Board.
(7)	Adopt, amend, or repeal any rules necessary to carry out the purposes of this Article and the duties and responsibilities of the Board.
(8)	Maintain a record of all proceedings and make available to certificate holders and other concerned parties an annual report of the Board.
(9)	Adopt a seal containing the name of the Board for use on all certificates and official reports issued by it.
(10)	Approve or establish requirements for massage therapy schools, instructors, education curriculum, examinations for licensure, and massage therapy establishments.
The powers and duties set out in this section are granted for the purpose of enabling the Board to safeguard the public health, safety, and welfare against unqualified or incompetent practitioners of massage therapy and are to be liberally construed to accomplish this objective.
"§ 90-417.  Custody and use of funds.
All fees and other moneys collected and received by the Board shall be used for the purposes of implementing this Article.
"§ 90-418.  Expenses and fees.
(a)	All salaries, compensation, and expenses incurred or allowed for the purposes of this Article shall be paid by the Board exclusively out of the fees received by the Board as authorized by this Article or from funds received from other sources.  In no case shall any salary, expense, or other obligations of the Board be charged against the State treasury.
(b)	The schedule of fees shall not exceed the following:
(1)  Application for examination	$150.00
(2)  License fee	100.00
(3)  License renewal fee	75.00
(4)  Late renewal penalty	50.00
(5)  Reciprocity	50.00
(6)  Duplicate license	15.00
(7)  Provisional license	100.00
"§ 90-419.  Requirements for licensure.
Upon application to the Board and the payment of the required fees, an applicant may be licensed as a massage therapist if the applicant meets all of the following qualifications:
(1)	Has obtained a high school diploma or equivalent.
(2)	Is 18 years of age or older.
(3)	Is of good moral character as determined by the Board.
(4)	Has successfully completed a 500-hour course of supervised study by an approved massage therapy school or program that shall include a curriculum as approved by the Board.
(5)	Successfully completes an examination administered or approved by the Board.
"§ 90-420.  Reciprocity.
(a)	Upon payment of the appropriate application fee, the Board may waive the examination, educational, or experience requirements and grant a license to any applicant who shall present proof of current certification or licensure as a massage therapist or practitioner of another state, the District of Columbia, or territory of the United States that requires standards for certification or licensure considered by the Board to be equivalent to the requirements for licensure in this State.
(b)	Upon receipt of an application for reciprocity, the Board shall contact each jurisdiction that has previously certified or licensed the applicant to determine whether or not there are disciplinary proceedings or unresolved complaints pending against the applicant.  In the event a disciplinary proceeding or an unresolved complaint is pending, the applicant shall not be licensed until the proceeding or the complaint has been resolved in the applicant's favor.
(c)	Reciprocity shall not be granted if the state in which the applicant is licensed has not granted similar reciprocity to massage therapists in this State.
"§ 90-421.  Provisional licensure.
If an applicant does not meet the approved educational requirements, then for a period of one year after the establishment of the Board, the Board may waive the educational requirements and allow a provisional license to be obtained.  At the end of one year after the granting of the provisional license, the applicant shall successfully pass the examination that has been approved by the Board to receive a license to practice massage therapy.  The applicant for a provisional license shall meet the requirements set forth in G.S. 90-419 (1)	and (2) and submit all of the following for consideration by the Board:
(1)	Verification and documentation of at least 500 hours of massage experience within a two-year period prior to application.
(2)	Verification that the applicant has been practicing in the State at the time the application is submitted.
(3)	Documentation proving the professional practice of massage therapy as defined in G.S. 90-412 as a primary source of income within two years preceding the application.
(4)	Three letters of reference from sources approved by the Board attesting to the sound moral character, professional qualifications, and competence of the applicant.
"§ 90-422.  Massage therapy schools.
The Board shall establish rules for the approval of massage therapy schools.  The Board shall approve massage therapy schools that meet its established criteria. The Board shall take into consideration schools and programs outside the State that satisfy the educational standards as set forth in this Article.  Each school shall be registered with the Board and shall provide the Board with annual updates of any changes of curriculum content and a current list of all instructors.  Each approved massage therapy school shall employ only instructors that have been approved by the Board.
"§ 90-423.  License renewal and continuing education.
The license to practice massage therapy shall be renewed every two years.  When renewing a license, each massage therapist shall submit to the Board evidence of the successful completion of at least 15 hours of study in the field of massage therapy during the immediately preceding two years as approved by the Board.
"§ 90-424.  Disciplinary action.
The Board may deny, suspend, revoke, or refuse to license a massage therapist or applicant under any of the following grounds:
(1)	The employment of fraud, deceit, or misrepresentation in obtaining or attempting to obtain a license or the renewal of a license.
(2)	The use of drugs or intoxicating liquors to an extent which affects professional competency.
(3)	Conviction of an offense under any municipal, State, or federal narcotic or controlled substance law until proof of rehabilitation can be established.
(4)	Conviction of a felony or other public offense involving moral turpitude until proof of rehabilitation can be established.
(5)	An adjudication of insanity or incompetency until proof of recovery from the condition can be established.
(6)	Engaging in any act or practice violative of any of the provisions of this Article or of any of the rules adopted by the Board, or aiding, abetting, or assisting any other person in the violation of the provisions or rules.
(7)	The commission of an act of malpractice, gross negligence, or incompetency in the practice of massage therapy.
(8)	Practice as a licensed massage therapist without a valid certificate or renewal.
(9)	Engaging in conduct that could result in harm or injury to the public.
(10)	The employment of fraud, deceit, or misrepresentation when communicating with the general public, health care professionals, or other business professionals regarding massage therapy or its licensure requirements.
"§ 90-425.  Enforcement; injunctive relief.
(a)	It is unlawful for a person not licensed or exempted under this Article to engage in any of the following:
(1)	Practice massage therapy.
(2)	Advertise, represent, or hold out to others as a massage therapist.
(3)	Use the title of massage therapist.
(b)	A person who violates subsection (a) of this section shall be guilty of a general misdemeanor, punishable by a fine, imprisonment, or both.
(c)	The Board may make application to superior court for an order enjoining a violation of this Article. Upon a showing by the Board that a person has violated or is about to violate this Article, the court may grant an injunction, restraining order, or take other appropriate action.
"§ 90-426.  Third-party reimbursement.
Nothing in this Article shall be construed to require direct third-party reimbursement to persons licensed under this Article."
Sec. 2. The provisions of this act are severable, and if any provision of this act is held invalid by a court of competent jurisdiction, the invalidity shall not affect other provisions of the act that can be given effect without the invalid provision.
Sec. 3.  This act becomes effective October 1, 1993, except that  G.S. 90-425 becomes effective December 1, 1993, and applies to offenses occurring on or after that date.