Joint Sunset Committee

Table of Contents

2010 Recommendations

Laws and Policies 3

Background 3

Joint Sunset Review History 3

Powers and Duties 5

Audits 8

Administrative Procedures Act 8

Freedom of Information Act 10

Federal Laws, Interagency Agreements, Memoranda of Understand, and Executive Orders 10

Judicial Decisions and Delaware Attorney General Opinions 10

Performance 10

Mission 10

Objectives 11

Accomplishments 12

Challenges 13

Opportunities for Improvement 13

Coordination of Services with other Agencies 14

Customer Satisfaction 14

Internal Performance Measures 14

Organization 14

Policymaking Structure 14

Member Training 16

Removal of Members 17

Staff 17

Staff Responsibilities 19

Staff Hiring and Training 19

Public Information 19

Certification and Licensure 20

Massage Technician - Certification 20

Temporary Certification 21

Massage Technician Examination 22

Massage and Bodywork Therapist - Licensure 22

Temporary Licensure 24

Massage and Bodywork Therapist Examination 24

Renewal of Licenses and Certification 25

Reciprocity for Certified Massage Technicians and Licensed Massage and Bodywork Therapists 25

Refusal to issue a License or Certification; Revocation; Suspension 26

Complaints 27

Disciplinary Action by the Board 29

Cease and Desist Authority over Unauthorized Practice 30

Fiscal 30

Fees 30

Revenue 31

Expenditures 31

Governing Statute

2010 Recommendations:

Board of Massage and Bodywork

The Joint Sunset Committee recommends continuance of the Board of Massage and Bodywork, but only upon its meeting certain conditions or making certain modifications as identified below.

A. The Joint Sunset Committee recommends the following statutory changes:

1. Amend the statute to read “massage AND bodywork therapists”.

2. Amend the statute to allow the Board the authority to require criminal background checks for new applicants as a healthcare profession.

3. Amend the statute to specify in 24 Del. C. §5310 that out of state licenses must be in good standing and clarify and clean up the other provisions within that section.

4. Currently, the requirements for licensure are set forth at 24 Del. C. §5308 (therapists) and 24 Del. C. §5309 (technicians). These sections do not include criminal history as an item to be addressed in considering an application. 24 Del. C. §5313 is entitled “Grounds for refusal, revocation or suspension of licenses and certificates. This section should be entitled “Grounds for discipline.” Any grounds for denial of licensure should be set forth in Sections 5308 or 5309. “Grounds for discipline” should be expanded to include items such as the illegal, incompetent or negligent practice of massage and bodywork

5. The Board’s statute lacks a “misconduct” provision as a reason to take disciplinary action against a licensee for allegations of unprofessional conduct, which most other Title 24 statutes contain. Add another “Grounds for Discipline” as follows:

-“Has been guilty of unprofessional conduct as adopted in rules and regulations hereto. Unprofessional conduct shall include departure from or failure to conform to the national code of professional ethics and standards of acceptable massage and bodywork practices.”

6. Amend the statute to provide the Board with the authority to fine licensees found guilty of disciplinary violations. Consistent with other Title 24 Boards and Commissions:

§ 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.

(6) Impose a monetary penalty not to exceed $500 for each violation.

7. Amend the statute by deleting 24 Del. C §5303(e) as it relates to appointment of the initial members of the Board.

8. Amend the statute by deleting 24 Del. C. §5315(a)(2) as it relates to the disciplinary sanction “Publicly censure a practitioner;”.

9. Amend the statute to give the Division of Professional Regulation the authority to issue licenses/permits/ certificates (for all Title 24 Boards) in cases where the licensing requirements are straightforward and when there are no questions, issues or concerns on the application. (29 Del. C. § 8735(a)) This provision will be done as a separate bill and will address all Boards/Commissions in Title 24.

10. Amend the statute to require the same ethics, law and contraindications in permanent licensure as is required in temporary licensure.

11. Amend the statute to provide for a single tier system with a 3 year window of grace for massage technicians. During that period of time for which they are not going to have to increase their clinical didactic hours but would use the time instead of taking CE’s to go toward preparing for the state licensing exam or opt for the National exam.

12. Review the second paragraph of 24 Del. C. § 5302(6) and add clarifying language to make sure that the individuals that are intended to be covered are covered by that provision and the individuals that are intended to be excluded are excluded consistent with the DAG’s explanation that people receiving compensation for a massage should be covered under the statute.

13. Amend the statute (§ 5303 (b)) to provide that upon enactment of single tier licensure, the phrase, “Two of whom shall be massage and bodywork therapists licensed under this chapter;” will read “four of whom shall be massage and bodywork therapists licensed under this chapter;” and the phrase “2 shall be massage technicians, certified under this chapter” shall be deleted. The remaining text in that section is not being amended.

“(b) The Board shall consist of 7 members appointed by the Governor, who are residents of this state: Two Four of whom shall be massage and bodywork therapists licensed under this chapter; 2 shall be massage technicians, certified under this chapter; and 3 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 or massage technician; shall not have been employed by a massage and bodywork therapist or massage technician; shall not have a material interest in the providing of goods and services to massage and bodywork therapists or massage technicians; 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.”

14. Amend the statute by adding, “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 treatment session.”

B. The Joint Sunset Committee recommends that the Board of Massage and Bodywork do the following:

1. Examine the feasibility of regulating the emerging field of bodywork modalities. The general public does not understand the educational levels that different bodywork modalities require. The Board should consider different modalities and determine the need or necessity of regulating emerging bodywork modalities to ensure public safety.

2. Consider other national certifications that offer national exams to bring other options for applicants. At this time the Board is keeping an open mind about future national certification programs that would give the Board the freedom to accept other practitioners by reciprocity and allow current practitioners to seek national recognition by their peers and clients.

3. Establish Rules and Regulations regarding treatment of minors in a massage and/or bodywork setting. The Division of Professional Regulation will provide draft language. If a bill is necessary, it can be a separate bill from Massage and Bodywork and address all related Boards/ Commission in Title 24)

4. Explanation about why the Board’s temporary certification requires ethics, law and contraindications are not required in permanent licensure. The Board replied that it was not aware that these provisions were not required in permanent licensure but it will add these provisions to the statute.

JSC Final Report

Board of Massage and Bodywork May 2010

Laws and Policies

Background

The following information was taken form the 1995 JSC Final Report of the Board of Massage and Bodywork. The Joint Sunset Committee reviewed the Commission on Adult Entertainment Establishments in 1989-90. At that time, only two persons were licensed as "massagists" in the state of Delaware, although the statute[1] required licensing of all persons "who perform massage services for a massage establishment, and shall include self-employed individuals." (Sec. 1602(10), 24 Del. C).

The definition of adult entertainment establishment, in 1990, included "massage establishments." "Massage establishments" were further defined in statute and included any business which provided services including physical massage. Certain occupations such as chiropractic and physical therapy were exempted under the definition.

The Board of Massage and Bodywork was established and first met in 1992. The Board of Massage and Bodywork was under Sunset Review in 1995 and as a result, the Committee made eighteen recommendations and subsequent revisions to the Board’s statute were made following the 1995 Joint Sunset Review.[2]

Joint Sunset Committee Review History

Below are the1995 Recommendations with a comment as to whether the Board has complied with each Recommendation:[3]

1. The Joint Sunset Committee has recommended a two-tiered system to regulate the practice of massage: a minimum of 500 in-class hours for licensure, a minimum of 100 in-class hours for certification.

The Board is in compliance pursuant to §5308 and §5309.

2. The Board of Massage/Bodywork is composed of 2 certified massage technicians, 2 licensed massage therapists, and 3 public members.

The Board is in compliance pursuant to §5303(b).

3. A quorum of 4 Board members is needed to certify massage technicians and to license massage technicians, or to revoke or suspend a license or certification. Any other action will be by simple majority.

The Board is in compliance pursuant to §5304(c).

4. Statutory language to mandate that a member can be automatically considered to have resigned for non-attendance at Board meetings.

The Board is in compliance pursuant to §5303(j).

5. “Boilerplate” language be added to the statute to reference the Freedom of Information Act and the Administrative Procedures Act.

The Board is in compliance with regard to references to the Administrative Procedures Act under §5306(a)(1) & (10), 5313(c), 5315(c) and 5316(a). There is no statute reference to the Freedom of Information Act under Chapter 53. However, there are provisions under Title 29, §8735(g) requiring compliance with the Freedom of Information Act as follows:

(g) The Director of Professional Regulation shall ensure that all regulatory actions taken by boards and commissions listed in this section are in conformance with the Administrative Procedures Act and the Freedom of Information Act. The Director shall review and approve all legal notices, public notices and agendas for conformance with these requirements.

6. “Boilerplate” conflict of interest language be added for professional and public members of the Board.

The Board is in compliance pursuant to §5303(b) and (h).

7. Statutory language will specify that Board members will serve 2 three-year terms and such terms will be staggered. Election of officer will take place at the same time every year and officers will be limited to 2 one-year terms.

The Board is in compliance pursuant to §5303(c ) and 5304(b).

8. Statutory language be added to allow the Board to revoke or suspend licenses.

The Board is in compliance pursuant to §5306(11) and §5315(4) & (5).

9. The same standards that apply to physical therapists shall also apply to the practice of massage/bodywork therapy.

The Board is unaware of the standards that are being referred to in this recommendation.

10. Licensed massage therapists will work only on medically-diagnosed conditions.

The Board is in compliance pursuant to §5307(a) and Rule and Regulation 8.0 that only licensed massage therapists can work on medically-diagnosed conditions.

11. Certified massage technicians will work on non-medically directed conditions.

The Board is in compliance pursuant to §5307(a) and Rule and Regulation 8.0 that certified massage technicians can only work on non-medically directed conditions.

12. The Joint Sunset Committee voted to contact the Department of Public Instruction and find out the process used to certify schools in Delaware.

The Department of Education, has an Advisory Committee on Private Business and Trade Schools that advises the Secretary of Education with regard

massage schools in Delaware.

13. Marsha Rees responded with the Rules adopted by the Department of Public Instruction to evaluate trade schools in Delaware and with information relating to the Owens Institute, the subject of a complaint by a massage practitioner.

The Department of Education complied with this recommendation.

14. The Joint Sunset Committee requested that Thom Shiels, Legislative Council attorney, research the Delaware Code and provide the Sunset Committee with a list of all sex offenses which are misdemeanors. Mr. Shiels responded with a listing for the Sunset Committee.

This recommendation was complied with by Joint Sunset Committee Counsel.

15. Language be included in the statute to state that a conviction for any felony or any misdemeanor sexual offense will be the basis for denial of a license or certificate.

This provision was implemented in HB 683 (1996); however the provision was revised with the implementation of SB 229 (2004) which gave the board authority to identify crimes substantially related to the practice of massage and bodywork. Substantially related crimes are listed in the Board’s Rule and Regulation 10.0.

16. Language be included in the statute which would allow the Board some flexibility in assessing offenses. Language similar to Nebraska's has been suggested: "Grounds for refusal, suspension, revocation, or discipline (unprofessional conduct) would include conviction of a misdemeanor felony under state law, federal law, or the law of another jurisdiction and which, if committed within this state, would have constituted a misdemeanor or felony under state law and which has a rational connection with the applicant's license or certificate holder's fitness or capacity to practice the profession." If the Board has any problems in enforcing the language, they can contact the Sunset Committee.