05
SB110/AP
Senate
Bill 110
By: Senators Unterman of the 45th, Thomas of the 54th and Smith of the 52nd
By: Senators Unterman of the 45th, Thomas of the 54th and Smith of the 52nd
AS
PASSED
AN
ACT
To
amend Title 43 of the Official Code of Georgia Annotated, relating to regulation
of professions and businesses, so as to add a new Chapter 24A regulating the
practice of massage therapy; to provide a short title; to provide legislative
findings and intent; to provide for certain definitions; to create the Georgia
Board of Massage Therapy; to provide for membership on the board; to provide for
meetings of the board; to provide for powers of the board; to provide for
licensure of massage therapists; to provide for provisional permits; to provide
for applications under oath; to provide for licensing examinations; to provide
for requirements relating to a license; to provide for violations; to prohibit
the unauthorized practice of massage therapy; to provide for disciplinary
actions; to provide for administrative procedures; to provide for exceptions; to
provide for continuing education requirements; to provide for cumulative
remedies; to provide for other jurisdictions; to provide for taxation; to
provide for related matters; to repeal conflicting laws; and for other
purposes.
BE
IT ENACTED BY THE GENERAL ASSEMBLY OF GEORGIA:
SECTION
1.
Title
43 of the Official Code of Georgia Annotated, relating to regulation of
professions and businesses, is amended by adding a new Chapter 24A to read as
follows:
"CHAPTER
24A
43_24A_1.
This
chapter shall be known and may be cited as the 'Georgia Massage Therapy Practice
Act.'
43_24A_2.
The
General Assembly acknowledges that the practice of massage therapy affects the
public health, safety, and welfare. Massage therapists must have a knowledge of
anatomy and physiology and an understanding of the relationship between the
structure and function of the tissue being treated and the total function of the
body. Massage is therapeutic and regulations are necessary to protect the public
from unqualified practitioners. It is in the interest of the public to set
standards of qualifications, education, training, and experience for those who
seek to practice massage therapy; to promote high standards of professional
performance for those licensed to practice massage therapy; and to protect the
public from unprofessional conduct by persons licensed to practice massage
therapy.
43_24A_3.
As
used in this chapter, the term:
(1)
'Advertise' means, but is not limited to, the issuing of or causing to be
distributed any card, sign, or other device or causing or permitting any sign or
marking on or in any building or structure, or in any newspaper, magazine, or
directory, or announcement on radio, or announcement or display on television,
computer network, or electronic or telephonic medium.
(2)
'Applicant' means any person seeking a license under this chapter.
(3)
'Board' means the Georgia Board of Massage Therapy established by this
chapter.
(4)
'Board recognized massage program' means an educational program which meets the
standards for training and curriculum as set out by the board in its rules which
are consistent with the Nonpublic Postsecondary Education Commission as provided
in Code Section 20_3_250.4.
(5)
'License' means a valid and current certificate of registration issued by the
board.
(6)
'Licensee' means any person holding a license.
(7)
'Massage therapist' means a person who administers massage or massage therapy
for compensation.
(8)
'Massage therapy' means the application of a system of structured touch,
pressure, movement, and holding to the soft tissue of the body in which the
primary intent is to enhance or restore health and well_being. The term includes
complementary methods, including without limitation the external application of
water, superficial heat, superficial cold, lubricants, salt scrubs, or other
topical preparations and the use of commercially available electromechanical
devices which do not require the use of transcutaneous electrodes and which
mimic or enhance the actions possible by the hands; the term also includes
determining whether massage therapy is appropriate or contraindicated, or
whether referral to another health care provider is appropriate. Massage
therapy shall not include the use of ultrasound, fluidotherapy, laser, and other
methods of deep thermal modalities.
(9)
'Person' means a natural person only.
(10)
'Provisionally permitted massage therapist' means a person issued a provisional
permit under this chapter.
43_24A_4.
(a)
There is created the Georgia Board of Massage Therapy which shall consist of
five members. The board shall be assigned to the Secretary of State´s
office for administrative purposes and shall be under the jurisdiction of the
division director and shall operate in accordance with and pursuant to the
provisions of Chapter 1 of this title, as applicable.
(b)
The Governor shall appoint, subject to confirmation by the Senate, all members
of the board for initial terms of office beginning July 1, 2005. The Governor
shall appoint two initial members of the board to serve for terms of two years
and three initial members of the board, including the public member, to serve
for terms of four years. After the initial terms specified in this subsection,
members of the board shall take office on the first day of July immediately
following the expired term of that office and shall serve for a term of four
years and until their successors are appointed and qualified. Any person
appointed to the board when the Senate is not in session may serve on the board
without Senate confirmation until the Senate acts on that appointment. No member
shall serve on the board for more than two full consecutive terms. Any vacancy
due to death, resignation, removal, or otherwise shall be filled for the
remainder of the unexpired term in the same manner as regular
appointments.
(c)
All members of the board shall be reimbursed as provided for in subsection (f)
of Code Section 43_1_2.
(d)
An appointee to the board shall qualify by taking an oath of office within 15
days from the date of his or her appointment. On presentation of the oath, the
Secretary of State shall issue a commission to each appointee as evidence of his
or her authority to act as a member of the board.
43_24A_5.
(a)(1)
There shall be four professional members of the board who shall:
(A)
Be citizens of the United States and residents of this state for at least three
years prior to the date of appointment;
(B)
Have been engaged in massage therapy practice for compensation for at least five
years immediately preceding their appointment; and
(C)
Be eligible for licensure under this chapter. Effective July 1, 2006, and
thereafter, all professional members of the board shall be licensed under this
chapter.
(2)
No more than one professional member of the board may be an owner of or
affiliated with any massage school.
(b)
There shall be one consumer member of the board who shall be appointed by the
Governor from the public at large, shall be a citizen of the United States and
resident of this state, and shall be a person to whom neither this state nor any
other state or jurisdiction or organization has ever issued a certificate,
registration, license, or permit to engage in the practice of massage therapy
nor be an owner of or affiliated with any massage school.
(c)
The Governor, after notice and opportunity for hearing, may remove any member of
the board for incompetence, neglect of duty, unprofessional conduct, conviction
of a felony, failure to meet the qualifications of this chapter, or committing
any act prohibited by this chapter.
43_24A_6.
The
board shall meet at least once each year at a time fixed by the board. At its
annual meeting, the board shall elect from its members a chairperson, vice
chairperson, and any other officers as deemed necessary who shall hold office
for a term of one year. Additionally, the board may appoint such committees as
it considers necessary to fulfill its duties. In addition to its annual meeting,
the board may hold additional meetings at the call of the chairperson or at the
request of any two members of the board or as approved by the division
director.
43_24A_7.
(a)
The board shall have the power to:
(1)
Examine and determine the qualifications and fitness of applicants for licenses
to practice massage therapy in this state;
(2)
Issue, renew, refuse to renew, deny, suspend, or revoke licenses to practice
massage therapy in this state or otherwise discipline licensed massage
therapists;
(3)
Conduct investigations for the purpose of discovering violations of this chapter
or grounds for disciplining persons licensed under this chapter;
(4)
Hold hearings on all matters properly brought before the board and, in
conjunction therewith, to administer oaths, receive evidence, make the necessary
determinations, and enter orders consistent with the findings. The board may
designate one or more of its members as its hearing officer;
(5)
Adopt, revise, and enforce rules concerning advertising by licensees including,
but not limited to, rules to prohibit false, misleading, or deceptive
practices;
(6)
Adopt an official seal; and
(7)
Bring proceedings to the courts for the enforcement of this chapter or any rules
and regulations promulgated pursuant to this chapter.
(b)
In addition to the enumerated powers in subsection (a) of this Code section, the
board has the authority to conduct its business pursuant to the provisions of
Code Section 43_1_19 which is incorporated herein and made a part of this
chapter by specific reference.
43_24A_8.
(a)
No person may practice massage therapy in this state who is not a licensed
massage therapist or the holder of a valid provisional permit issued by the
division director pursuant to this chapter.
(b)
Prior to July 1, 2007, any applicant for a license as a massage therapist must
submit a completed application upon a form and in such manner as the board
prescribes, accompanied by applicable fees, and evidence satisfactory to the
board that:
(1)
The applicant is at least 18 years of age;
(2)
The applicant is of good moral character. For purposes of this paragraph, 'good
moral character' means professional integrity and a lack of any conviction for
acts involving moral turpitude where the underlying conduct relates to the
applicant´s fitness to practice massage therapy;
(3)
The applicant agrees to provide the board with any and all information necessary
to perform a criminal background check and expressly consents and authorizes the
board or its representative to perform such a check; and
(4)
The applicant has met at least one of the following requirements:
(A)
He or she has completed successfully a board recognized educational program with
a minimum of 500 hours of course and clinical work;
(B)
He or she has passed satisfactorily the National Certification Examination for
Therapeutic Massage and Bodywork, an equivalent test approved by the board, or
an examination administered by another state or jurisdiction whose license
requirements meet or exceed those of this state;
(C)
He or she meets the qualifications necessary to sit for the National
Certification Examination for Therapeutic Massage and Bodywork or has
substantially similar qualifications as determined by the board;
(D)
He or she holds a license as a massage therapist in another state or
jurisdiction whose license requirements meet or exceed the licensing
requirements of this state;
(E)
He or she has practiced massage therapy for at least ten hours per week on
average for at least ten years prior to the date of application and has
completed at least 100 hours of formal training in massage therapy as determined
by the board;
(F)
He or she has practiced massage therapy for at least five years prior to the
date of application and has completed a minimum of 200 hours of formal training
in massage therapy as determined by the board;
(G)
He or she has, to the satisfaction of the board, training in another state or
jurisdiction that meets or exceeds the requirements for licensing in this
state;
(H)
He or she has been a member, as a massage therapist, for a period of one year
prior to his or her application for licensure of a professional massage therapy
association established before 2002 which holds its members to a published code
of ethics; or
(I)
He or she has been legally practicing massage therapy in this state for
compensation prior to July 1, 2005.
(c)
On and after July 1, 2007, any applicant for a license as a massage therapist
must submit a completed application upon a form and in such manner as the board
prescribes, accompanied by applicable fees, and evidence satisfactory to the
board that:
(1)
The applicant is at least 18 years of age;
(2)
The applicant has a high school diploma or its recognized
equivalent;
(3)
The applicant is a citizen of the United States or a permanent resident of the
United States;
(4)
The applicant is of good moral character. For purposes of this paragraph, 'good
moral character' means professional integrity and a lack of any conviction for
acts involving moral turpitude where the underlying conduct relates to the
applicant´s fitness to practice massage therapy;
(5)
The applicant agrees to provide the board with any and all information necessary
to perform a criminal background check and expressly consents and authorizes the
board or its representative to perform such a check;
(6)
The applicant has completed successfully a board recognized educational program
consisting of a minimum of 500 hours of course and clinical work;
and
(7)
The applicant has passed satisfactorily the National Certification Examination
for Therapeutic Massage and Bodywork, an equivalent test approved by the board,
or an examination administered by another state or jurisdiction whose license
requirements meet or exceed those of this state.
43_24A_9.
(a)
A provisional permit to practice as a provisionally permitted massage therapist
may be issued for a two_year period by the board to the following
applicants:
(1)
An applicant licensed in another state with like or similar requirements for
licensure; or
(2)
An applicant who is not the holder of any massage therapy license.
(b)
Such permit shall authorize the applicant to work under the supervision of a
licensed massage therapist as provided by the board.
(c)
The applicant, by submitting an application for a provisional permit, agrees to
provide the board with any and all information necessary to perform a criminal
background check and expressly consents and authorizes the board or its
representative to perform such a check.
(d)
Such provisional permit shall have the same force and effect as a permanent
license until the time of its expiration.
(e)
The provisional permit shall expire on the same date as a permanent license that
is issued to persons who have passed the examination.
43_24A_10.
The
board may require that all applications be made under oath.
43_24A_11.
(a)
Examinations shall be administered to qualified applicants at least twice each
calendar year.
(b)
Applicants may obtain their examination scores in accordance with such rules and
regulations as the board may establish.
43_24A_12.
(a)
Any applicant for a license by reciprocity as a massage therapist must submit a
completed application upon a form and in such manner as the board prescribes,
accompanied by applicable fees, and evidence satisfactory to the board
that:
(1)
The applicant is at least 18 years of age;
(2)
The applicant is of good moral character. For purposes of this paragraph, 'good
moral character' means professional integrity and a lack of any conviction for
acts involving moral turpitude where the underlying conduct relates to the
applicant´s fitness to practice massage therapy;
(3)
The applicant agrees to provide the board with any and all information necessary
to perform a criminal background check and expressly consents and authorizes the
board or its representative to perform such a check; and
(4)
The applicant is currently licensed as a massage therapist in another
jurisdiction, state, or territory of the United States or foreign country which
requires standards for licensure considered by the board to be equivalent to the
requirements for licensure under this chapter.
43_24A_13.
(a)
Any applicant for a license by endorsement as a massage therapist must submit a
completed application upon a form and in such manner as the board prescribes,
accompanied by applicable fees, and evidence satisfactory to the board
that:
(1)
The applicant is at least 18 years of age;
(2)
The applicant is of good moral character. For purposes of this paragraph, 'good
moral character' means professional integrity and a lack of any conviction for
acts involving moral turpitude where the underlying conduct relates to the
applicant´s fitness to practice massage therapy;
(3)
The applicant agrees to provide the board with any and all information necessary
to perform a criminal background check and expressly consents and authorizes the
board or its representative to perform such a check; and
(4)
The applicant either:
(A)
Is currently licensed as a massage therapist in another jurisdiction, state, or
territory of the United States or foreign country which requires standards for
licensure considered by the board to be equivalent to the requirements for
licensure under this chapter; or
(B)
Has current certification by the National Certification Board for Therapeutic
Massage and Bodywork or an equivalent certification approved by the National
Commission for Certifying Agencies.
43_24A_14.
(a)
The licensee shall display the license certificate or a photocopy thereof in an
appropriate and public manner at each location at which he or she
practices.
(b)
All licenses shall expire biennially unless renewed. All applications for
renewal of a license shall be filed with the division director prior to the
expiration date, accompanied by the biennial renewal fee prescribed by the board
and certifying that all current requirements of continuing education as
determined by the board have been fulfilled. The board shall provide for penalty
fees for late registration. The failure to renew a license by the end of an
established penalty period shall have the same effect as a revocation of said
license, subject to reinstatement only after application and payment of the
prescribed reinstatement fee within the time period established by the division
director, provided that the applicant meets such requirements as the board may
establish by rule.
(c)
The licensee shall inform the board of any change of address within 30
days.
(d)
Each person licensed under this chapter is responsible for renewing his or her
license before the expiration date.
(e)
Under procedures and conditions established by the board, a licensee may request
that his or her license be declared inactive. The licensee may apply for active
status at any time and upon meeting the conditions set forth by the board shall
be declared active.
43_24A_15.
(a)
It is a violation of this chapter for any person to advertise massage therapy
services unless such services are provided by a person who holds a valid license
under this chapter.
(b)
It shall be a violation of this chapter for any person to
advertise:
(1)
As a massage therapist unless the person holds a valid license under this
chapter in the classification so advertised; or
(2)
Massage therapy services combined with escort or dating services or adult
entertainment.
(c)
It shall be unlawful for a person or business entity or its employees, agents,
or representatives to practice massage therapy or to use in connection with its
name or business activity the terms 'massage,' 'massage therapy,' 'massage
therapist,' 'massage practitioner,' or the letters 'M.T.,' 'L.M.T.,' or any
other words, letters, abbreviations, or insignia indicating or implying directly
or indirectly that massage therapy is provided or supplied unless such massage
therapy is provided by a massage therapist licensed and practicing in accordance
with this chapter.
43_24A_16.
The
practice of massage therapy is declared to be an activity affecting the public
interest and involving the health, safety, and welfare of the public. Such
practice by a person who is not licensed to practice in this state is declared
to be a public nuisance, harmful to the public health, safety, and welfare. Any
citizen of this state, the board, or the appropriate prosecuting attorney where
such practice is carried on by such unlicensed person may, on behalf of the
public, bring an action to restrain and enjoin such unlicensed practice in the
superior court of the county where such unlicensed person resides or works. It
shall not be necessary in order to obtain an injunction under this Code section
to allege or prove that there is no adequate remedy at law or to allege or prove
any special injury.
43_24A_17.
The
board shall take disciplinary action in accordance with the provisions of
Chapter 1 of this title.
43_24A_18.
Proceedings
under this chapter shall be governed by Chapter 13 of Title 50, the 'Georgia
Administrative Procedure Act.'
43_24A_19.
Nothing
in this chapter shall be construed to affect, restrict, or prevent the practice,
services, or activities of:
(1)
A person licensed, registered, or certified under any other chapter or article
under Title 43 while engaged in the professional or trade practices properly
conducted under authority of such other licensing laws, provided that such
person shall not use the title of massage therapist;
(2)
A person pursuing a course of study leading to a degree or certificate as a
massage therapist in an educational program recognized by the board, if such
person is designated by title indicating student status and is fulfilling
uncompensated work experiences required for the attainment of the degree or
certificate;
(3)
A nonresident person rendering massage therapy up to 60 days during a 12 month
period for treatment of a temporary sojourner only, provided that such
nonresident massage therapist holds a license, registration, or certification
from another state, jurisdiction, or country if the requirements as determined
by the board for licensure are substantially equal to the requirements contained
in this chapter or provided that such nonresident massage therapist is currently
nationally certified in therapeutic massage and bodywork;
(4)
A person duly licensed, registered, or certified in another jurisdiction, state,
territory, or a foreign country when incidentally in this state to provide
service as part of an emergency response team working in conjunction with
disaster relief officials or as part of a charity event with which he or she
comes into the state;
(5)
A person who restricts his or her practice to the manipulation of the soft
tissue of the human body to hands, feet, or ears who does not have the client
disrobe and does not hold himself or herself out as a massage
therapist;
(6)
A person who uses touch, words, and directed movement to deepen awareness of
existing patterns of movement in the body as well as to suggest new
possibilities of movement while engaged within the scope of practice of a
profession with established standards and ethics, provided that his or her
services are not designated or implied to be massage or massage
therapy;
(7)
A person who uses touch and movement education to effect change in the structure
of the body while engaged in the practice of structural integration, provided
that he or she is a member of, or whose training would qualify for membership
in, the International Association of Structural Integrators and provided that
his or her services are not designated or implied to be massage or massage
therapy;
(8)
A person who uses touch to affect the energy systems, polarity, acupoints, or Qi
meridians, also known as channels of energy, of the human body while engaged
within the scope of practice of a profession with established standards and
ethics, provided that his or her services are not designated or implied to be
massage or massage therapy; or
(9)
A person who was engaged in massage therapy practice prior to July 1, 2005;
provided, however, the prohibition of subsection (c) of Code Section 43_24A_15
shall apply to such a person on and after July 1, 2007.
43_24A_20.
The
board shall establish continuing education requirements not to exceed 25 hours
per biennium. The board shall by rule establish criteria for the approval of
continuing education programs or courses. The programs or courses approved by
the board may include correspondence courses that meet the criteria for
continuing education courses.
43_24A_21.
As
cumulative to any other remedy or criminal prosecution, the board may file a
proceeding in the name of the state seeking issuance of a restraining order,
injunction, or writ of mandamus against any person who is or has been violating
any of the provisions of this chapter or the lawful rules or orders of the
board.
43_24A_22.
This
chapter shall not be construed to prohibit a county or municipality from
enacting any regulation of persons not licensed pursuant to this chapter. No
provision of any ordinance enacted by a municipality, county, or other
jurisdiction that is in effect before July 1, 2005, and that relates to the
practice of massage therapy or requires licensure of a massage therapist may be
enforced against a person who is issued a license by the board under this
chapter.
43_24A_23.
Notwithstanding
any provision of law to the contrary, the act of a duly licensed massage
therapist in performing a massage shall be deemed to be the act of a health care
professional and shall not be subject to the collection of any form of state or
local taxation regulations not also imposed on other professional health care
activities.
43_24A_24.
(a)
Any person who practices massage therapy without a valid license in violation of
this chapter, upon conviction thereof, shall be punished as provided in this
Code section.
(b)
Each act of unlawful practice under this Code section shall constitute a
distinct and separate offense.
(c)
Upon being convicted a first time under this Code section, such person shall be
punished by a fine of not more than $500.00 for each offense. Upon being
convicted a second or subsequent time under this Code section, such person shall
be punished by a fine of not more than $1,000.00 for each offense, imprisonment
for not more than 12 months, or
both."
SECTION
2.
This
Act will become effective when funding is appropriated.
SECTION
3.
All
laws and parts of laws in conflict with this Act are repealed.