Delaware-2009-HB463-Draft

Section 1. Amend §5302(4), Title 24 of the Delaware Code by inserting two new sentences at the end of said subsection, reading as follows:

"Effective upon the date of enactment of this statute, the Board shall no longer accept or grant applications for certification as a massage technician. Effective 3 years after the date of enactment of this statute, all massage technician certifications shall expire, and any person who has not obtained licensure as a massage and bodywork therapist, and who continues to practice as a massage technician, shall be engaging in unlicensed practice.".

Section 2. Amend §5302(6), Title 24 of the Delaware Code by striking the second paragraph of said subsection in its entirety.

Section 3. Amend §5303(b), Title 24 of the Delaware Code by inserting a new sentence between the word and punctuation "public." and the words "The public" as follows:

"Effective 3 years after the date of enactment of this statute, the Board shall consist of 4 members who shall be massage and bodywork therapists licensed under this Chapter and 3 members of the public.".

Section 4.Amend §5303(e), Title 24 of the Delaware Code by striking said subsection in its entirety.

Section 5.Amend §5303, Title 24 of the Delaware Code by re-designating subsections "(f)" through "(k)" as subsections "(e)" through "(j)", respectively.

Section 6.Amend §5304(c), Title 24 of the Delaware Code by striking the second sentence of said subsection in its entirety and substituting in lieu thereof the following:

"The affirmative vote of at least 4 members of the Board is required to certify and license applicants or to suspend or revoke a license.".

Section 7.Amend §5306(a)(3), Title 24 of the Delaware Code by striking in its entirety the text appearing after the phrase "Director of the Division;".

Section 8.Amend §5306(a)(5), Title 24 of the Delaware Code by striking in their entirety the phrases "and of all persons applying for certification as massage technicians," and "or certification".

Section 9.Amend §5306(a)(6), Title 24 of the Delaware Code by inserting the punctuation ";" after the phrase "and/or renewal" and by striking in its entirety the remaining language in said paragraph.

Section 10.Amend §5306(a)(8), Title 24 of the Delaware Code by striking the phrase "or certification" where it appears in said paragraph.

Section 11.Amend §5306(a)(10), Title 24 of the Delaware Code by striking the word "and" at the end of said paragraph.

Section 12.Amend §5306(a)(11), Title 24 of the Delaware Code by striking the punctuation "." at the end of said paragraph and substituting in lieu thereof the punctuation ";".

Section 13.Amend §5306(a), Title 24 of the Delaware Code by inserting new paragraphs "(12)" through "(14)", reading as follows:

"(12) Adopt rules and regulations concerning advertising by massage and bodywork therapists;

(13) Adopt rules and regulations setting forth unprofessional conduct by massage and bodywork therapists and massage technicians; and

(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 treatment session.".

Section 14.Amend the heading "Subchapter II. License and Registration" where it appears in Chapter 53, Title 24 of the Delaware Code, by striking the words "and Registration".

Section 15.Amend §5307(a), Title 24 of the Delaware Code by inserting the phrase "or prescription" between the word "referral" and the word "from" in both the second and third sentences, by striking the words "by prescription" in the second sentence and by inserting the words "and from treating medically diagnosed conditions" at the end of the third sentence.

Section 16.Amend §5307(b), Title 24 of the Delaware Code by inserting the words "or certificate" between the words "license" and "to practice" and by striking the words "as a massage and bodywork therapist".

Section 17.Amend §5307, Title 24 of the Delaware Code by inserting a new subsection "(d)" reading as follows:

"(d) This Chapter shall not apply to:

(1) Actions by any person, who is certified or licensed in this State by any other law, and who is engaged in and acting within the scope of the profession or occupation for which that person is certified or licensed;

(2) Actions by any person engaged in an occupation which does not require a certificate or certification, including, but not limited to, physical education teachers, athletic coaches, health or recreation directors, instructors at health clubs or spas, martial arts, water safety and dance instructors, or coaches, who is acting within the scope of activity for which such person is trained; and

(3) Any student of massage who is practicing within the scope of his or her course of study.".

Section 18.Amend §5308(a), Title 24 of the Delaware Code by striking paragraphs "(4)" "(5)" and "(6)" in their entirety.

Section 19.Further amend §5308(a), Title 24 of the Delaware Code by inserting a new subsection "(1)" as reading follows:

"(1) Is at least 18 years of age;".

Section 20.Amend §5308(a), Title 24 of the Delaware Code by re-designating subsections "(1)" through "(3)" as subsections "(2)" through "(4)", respectively.

Section 21.Amend the newly designated §5308(a)(2)c., Title 24 of the Delaware Code by striking the phrase "100 hours" where it appears in said subparagraph, and inserting in lieu thereof the phrase "75 hours".

Section 22.Amend the newly designated §5308(a)(2), Title 24 of the Delaware Code by adding a new subparagraph "d." reading as follows:

"d. 25 hours of ethics, law and contraindications.".

Section 23.Amend§5308(a), Title 24 of the Delaware Code by inserting new paragraphs "(5)" through "(9)", reading as follows:

"(5) Has not engaged in any of the acts or offenses that would be grounds for disciplinary action under this chapter;

(6) Has no disciplinary proceedings or unresolved complaints pending against that person in any jurisdiction where the applicant has previously been or currently is licensed to practice massage and/or bodywork therapy;

(7) Has not been the recipient of any administrative penalties regarding that person's practice of massage and bodywork therapy, including but not limited to fines, formal reprimands, license suspensions or revocation (except for license revocations for nonpayment of license renewal fees), probationary limitations and/or has not entered into any �consent agreements' which contain conditions placed by a Board on that person's professional conduct and practice, including any voluntary surrender of a license. The Board may determine, after a hearing, whether such administrative penalty is grounds to deny licensure;

(8) Shall not have any impairment related to drugs or alcohol or a finding of mental incompetence by a physician that would limit the applicant's ability to undertake that applicant's practice in a manner consistent with the safety of the public;

(9) Has not been convicted of a crime that is substantially related to the practice of massage and bodywork. However, after a hearing or review of documentation demonstrating that the applicant meets the specified criteria for a waiver, the Board, by an affirmative vote of a majority of the quorum, may waive this paragraph (a)(5), if it finds all of the following:

a. More than 5 years have elapsed since the applicant has fully discharged all imposed sentences. As used herein, the term "sentence" includes, but is not limited to, all periods of modification of a sentence, probation, parole or suspension. However, "sentence" does not include fines, restitution or community service, as long as the applicant is in substantial compliance with such fines, restitution and community service.

b. The applicant is capable of practicing massage and bodywork in a competent and professional manner.

c. The granting of the waiver will not endanger the public health, safety or welfare.".

Section 24.Amend §5308(b), Title 24 of the Delaware Code by striking the word "application" and inserting in lieu thereof the word "applicant".

Section 25.Amend §5308, Title 24 of the Delaware Code by inserting new subsections "(e)" through "(g)" reading as follows:

"(e) An applicant shall submit fingerprints and other necessary information in order to obtain a report of the individual's entire criminal history record from the State Bureau of Identification and from the Federal Bureau of Investigation pursuant to Federal Bureau of Investigation appropriation of Title II of Public Law 92-544 (28 U.S.C §534). If the applicant does not have a criminal history record, the applicant shall cause to be submitted a statement from each agency that the agency has no record of criminal history information relating to the applicant. The State Bureau of Identification shall be the intermediary for the purpose of this subsection and the Board, or its designee, shall be the screening point for the receipt of the federal criminal history record. The applicant is responsible for the required fee, if any, for obtaining the records.

(f) Foreign-trained applicants must provide evidence of training and supervision essentially comparable to that cited in §5308(a)(2) of this Chapter.

(g) All certified massage technicians shall become licensed as massage and bodywork therapists no later than 3 years after the date of enactment of this act. If any certified massage technician does not achieve licensure by that date, and continues to practice, he or she shall be engaged in unlicensed practice.For a 3 year period beginning with the date of enactment, a massage technician with current, active certification, who is applying for licensure as a massage and bodywork therapist, shall be exempt from the education and examination requirements set forth in �§5308(a)(1) and (2) of this Chapter if the certified massage technician presents proof that he or she has achieved the passing score on either a certification examination or the National Examination for State Licensing, both of which are offered by the NCBTMB.Successful achievement of the passing score shall result in waiver of certain continuing education requirements, as set forth in the Board's rules and regulations.".

Section 26.Amend Title 24 of the Delaware Code by inserting the following at the end of the heading entitled "§5309 Qualifications of applicants for certification as massage technicians".

"[Effective upon the date of enactment, the Board shall no longer accept or grant applications for certification as a massage technician. Effective 3 years after the date of enactment, all massage technician certifications shall expire.]".

Section 27. Amend §5310, Title 24 of the Delaware Code by striking both paragraphs of the existing section in their entirety and inserting the following in lieu thereof:

"Upon payment of the appropriate fee and submission and acceptance of a written application on forms provided by the Board, the Board shall grant a license to each applicant who shall present proof of current licensure, in good standing, in another State, the District of Columbia or territory of the United States, and who, in addition:

(a) Meets the criteria for current licensure in good standing as defined in §5308(a)(5)-(9) of this Title and has complied with §5308(e);

(b) Has achieved the passing score on a written, standardized nationally-prepared and administered examination in massage or bodywork therapy; the passing score shall be as established by the testing agency.If the testing agency has not established a passing score, the Board in conjunction with the Division shall establish the passing score;

(d) Possesses current CPR certification.".

Section 28. Amend §5312(a), Title 24 of the Delaware Code by (i) striking the phrases "or certificate" and "or certification as a massage technician"; and(ii) striking the word "or" where it appears between the words "massage" and "bodywork" and inserting in lieu thereof the word "and".

Section 29.Amend §5312(b), Title 24 of the Delaware Code by striking the phrases "or certificate", and "or certificant", where each phrase appears in said subsection.

Section 30. Amend §5312(c), Title 24 of the Delaware Code by (i) striking the word "or" where it appears between the words "massage" and "bodywork" and inserting in lieu thereof the word "and" and (ii) by striking the phrases "or certified massage technician", "or certificate", and "or certificant", where each phrase appears in said subsection.

Section 31. Amend §5312(d), Title 24 of the Delaware Code by striking the phrases "or certificate holder", and "or certificate", where each phrase appears in said subsection.

Section 32. Amend §5313, Title 24 of the Delaware Code, by striking the existing heading in its entirety and inserting the following in lieu thereof : "§5312. Grounds for discipline."

Section 33. Amend §5313(a), Title 24 of the Delaware Code by striking the word "or" between the words "massage" and "bodywork" and inserting in lieu thereof the word "and".

Section 34. Amend §5313(a)(1), Title 24 of the Delaware Code by striking the word "or" between the words "massage" and "bodywork" and inserting in lieu thereof the word "and".

Section 35. Amend §5313(a)(2), Title 24 of the Delaware Code by striking said paragraph in its entirety, including subparagraphs a. b. and c. thereof, and inserting the following in lieu thereof:

"(2) Has been convicted of a crime that is substantially related to the practice of massage and bodywork, as set forth in the Board's rules and regulations; a copy of the record of conviction certified by the clerk of the court entering the conviction shall be conclusive evidence thereof;".

Section 36. Further amend §5313(a), Title 24 of the Delaware Code by striking the existing paragraph (3) in its entirety and inserting the following in lieu thereof:

"(3) Has an impairment related to drugs or alcohol or a finding of mental incompetence by a physician that would limit the practitioner's ability to undertake his or her practice in a manner consistent with the safety of the public;".

Section 37. Amend §5313(a)(5), Title 24 of the Delaware Code by striking the word "or" between the words "massage" and "bodywork" each time they appear in said paragraph and inserting in lieu thereof the word "and".

Section 38. Amend §5313(a)(6), Title 24 of the Delaware Code by striking the word "or" between the words "massage" and "bodywork" and inserting in lieu thereof the word "and", and by striking the word "or" at the end of said paragraph.

Section 39. Amend §5313(a)(7), Title 24 of the Delaware Code by striking the punctuation "." at the end of the subsection and inserting in lieu thereof the punctuation and word "; or", and by inserting a new paragraph "(8)" reading as follows:

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

Section 40. Amend §5313(c), Title 24 of the Delaware Code by inserting the phrase "disciplined," between the words "be" and "restricted".

Section 41.Amend §5315(a), Title 24 of the Delaware Code by striking the existing paragraph "(2)" in its entirety and by re-designating the paragraphs "(3)" through "(5)" as paragraphs "(2)" through "(4)", respectively.

Section 42. Amend §5315(a), Title 24 of the Delaware Code by inserting a new paragraph "(5)" reading as follows:

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

Section 43. Amend §5315(c), Title 24 of the Delaware Code by inserting the word "or" between the word and punctuation "adjudication," and the word "during" and by inserting the words and punctuation "with 24 hours written notice to the practitioner," between the word and punctuation "process," and the word "but".

Section 44. Amend §5316(c), Chapter 53, Title 24 of the Delaware Code by striking the words "of service, or of the postmarked date of the copy of the decision mailed to the practitioner" and inserting in lieu thereof the words "after the date of mailing of the decision".

Section 45. As stated in the statutory language, Section 1, pertaining to expiration of massage technician certificates, and Section 3, pertaining to Board composition, shall go into effect three years after the date of enactment of this Act.In addition, Sections 21 and 22, pertaining to the education requirements for massage and bodywork therapists, shall go into effect three years after the date of enactment.The remaining Sections of this Act shall take effect immediately upon enactment.

SPONSOR:	Rep. Kowalko & Sen. Hall-Long;
	Reps. Atkins, Bennett, Kovach, Lee; Sens. Bonini, Booth, Bushweller, Katz