AB461: Bill Text

AB461,1,7 An Act to amend 15.08 (1m) (b), 50.01 (2), 55.043 (4) (e), 103.10 (1) (e), 146.40 (1) (d), 146.81 (1) (i) and (j), 252.10 (7), 252.15 (1) (ar) 1., 448.03 (2) (a), 448.10 (4), 451.02 (1), 895.48 (1m) (intro.), 895.48 (1m) (b) and 908.03 (6m) (a); and to create 15.405 (6r), 146.81 (1) (hp), 180.1901 (1m) (h), 440.08 (2) (a) 46r., 448.21 (1) (f) and chapter 460 of the statutes; relating to: the regulation of massage therapists and bodyworkers, creating a massage therapy and bodywork examining board, granting rule-making authority and providing a penalty.

Analysis by the Legislative Reference Bureau

This bill establishes requirements for the licensure of massage therapists and bodyworkers. The bill creates a 7-member massage therapy and bodywork examining board (examining board), attached to the department of regulation and licensing, to administer and enforce the requirements.

The bill also prohibits, with certain exceptions, a person who is not granted a license by the examining board from practicing massage therapy or bodywork for compensation. "Massage therapy or bodywork" is defined as the use of manual actions to manipulate the soft tissue of the human body for the purpose of improving circulation, reducing tension, relieving pain or increasing flexibility or the use of an adjunctive therapy to accomplish such purposes, but the term does not include making a medical diagnosis. The bill also prohibits a person who is not granted a license from using a title that represents that he or she is a massage therapist or bodyworker.

The bill does all of the following with respect to the regulation of massage therapists and bodyworkers:

1. Specifies the education, training, examination and other requirements and qualifications needed for licensure as a massage therapist or bodyworker and allows the examining board to waive any of the requirements if an applicant has substantially equivalent education, training or other experience. The bill also permits the examining board to promulgate rules that require a licensed massage therapist or bodyworker to complete at least 12 hours of continuing education every 2 years.

2. Allows the examining board to grant a temporary massage therapist or bodyworker license to a person who has applied to take the next available massage therapist or bodyworker examination and to grant a reciprocal license to a person who is licensed by another state or territory with licensing requirements that are substantially equivalent to the requirements of the bill.

3. Requires a massage therapist or bodyworker to obtain the informed consent of a client and to keep confidential any information that is given to the massage therapist or bodyworker in confidence by a client.

4. Prohibits a massage therapist or bodyworker from practicing massage therapy or bodywork at a "sexually oriented business", as defined by rule by the examining board.

5. Requires a massage therapist or bodyworker to make a report to the examining board if he or she is convicted of a felony or misdemeanor, or is found to have committed a violation of state or local law that is punishable by a forfeiture, and the circumstances of the felony, misdemeanor or violation substantially relate to the practice of massage therapy or bodywork. The bill also requires a massage therapist or bodyworker to make a report to the examining board if he or she has reasonable cause to believe that another massage therapist or bodyworker has committed a crime relating to prostitution or has had sexual contact or intercourse with a client and allows the examining board to investigate the report.

6. Allows the examining board to reprimand a person who has been granted a license or to deny, limit, suspend or revoke a license if a person has engaged in certain conduct or violated any requirement under the bill. A person who violates the bill's requirements is subject to a forfeiture of up to $1,000 for each violation, except that a person who violates the prohibition against practicing massage therapy or bodywork or using a title without a license is required to pay a forfeiture of up to $500 for each day of violation.

7. Creates exemptions from the bill's requirements for certain persons, including: a) a massage therapist student who practices, without compensation, under the on-premises supervision of an instructor; and b) a person who does not imply that he or she is a massage therapist or bodyworker and who manipulates the soft tissues of the hands or feet, uses touch or spoken words to increase awareness of patterns of movements in the human body, or uses his or her hands to influence energy fields within or around the human body.

The bill also prohibits a city, village, town or county from enacting an ordinance that regulates the practice of massage therapy or bodywork by a person who is licensed by the examining board. In addition, a city, village, town or county is allowed to enact a zoning ordinance that restricts the location of an office in which massage therapy or bodywork is practiced, but only if the same restrictions also apply to a physician's office.

Finally, the bill also does all of the following:

1. Makes state law regarding the confidentiality of patient health care records applicable to records of a massage therapist or bodyworker about his or her clients.

2. Allows massage therapists or bodyworkers to organize and be shareholders in a health care professional service corporation. Current law allows only certain other health care providers to organize and be members of such a corporation.

3. Exempts, under certain circumstances, massage therapists or bodyworkers from civil liability for rendering voluntary care to participants at certain athletic events and contests. Current law exempts only certain other health care providers from such liability.

4. Expands the exception to the hearsay rule under current law that applies to records of certain health care providers so that it also applies to records of massage therapists or bodyworkers.

5. Expands the applicability of certain requirements under current law pertaining to subpoenas of health care records so that they also apply to records of massage therapists and bodyworkers.

For further information see the state and local fiscal estimate, which will be printed as an appendix to this bill.

The people of the state of Wisconsin, represented in senate and assembly, do enact as follows:

AB461, s. 1 Section 1. 15.08 (1m) (b) of the statutes is amended to read:

AB461,4,3 15.08 (1m) (b) The public members of the chiropractic examining board, the dentistry examining board, the hearing and speech examining board, the massage therapy and bodywork examining board, the medical examining board, podiatry examining council, occupational therapy examining council, respiratory care practitioners examining council and council on physician assistants, the board of nursing, the nursing home administrator examining board, the veterinary examining board, the optometry examining board, the pharmacy examining board, the examining board of social workers, marriage and family therapists and professional counselors and the psychology examining board shall not be engaged in any profession or occupation concerned with the delivery of physical or mental health care.

AB461, s. 2 Section 2. 15.405 (6r) of the statutes is created to read:

AB461,4,8 15.405 (6r) Massage therapy and bodywork examining board. (a) There is created a massage therapy and bodywork examining board in the department of regulation and licensing. The examining board shall consist of the following members appointed for 4-year terms:

AB461,4,11 1. Five massage therapists or bodyworkers who are licensed under ch. 460 and have engaged in the practice of massage therapy or bodywork for at least 2 years preceding appointment.

AB461,4,12 2. Two public members.

AB461,4,15 (b) In appointing members under par. (a), the governor shall ensure, to the maximum extent practicable, that the membership of the board is diverse, based on all of the following factors:

AB461,4,16 1. Massage or bodywork therapies practiced in this state.

AB461,4,18 2. Affiliation and nonaffiliation with a professional association for the practice of massage therapy or bodywork.

AB461,4,20 3. Professional associations with which massage therapists or bodyworkers in this state are affiliated.

AB461,4,21 4. Practice in urban and rural areas in this state.

AB461, s. 3 Section 3. 50.01 (2) of the statutes is amended to read:

AB461,5,3 50.01 (2) "Nurse's assistant" means a person who performs routine patient care duties delegated by a registered nurse or licensed practical nurse who supervises the person, for the direct health care of a patient or resident. "Nurse's assistant" does not mean a person who is licensed, permitted, certified or registered under ch. 441, 448, 449, 450, 451, 455 or, 459 or 460 or a person whose duties primarily involve skills that are different than those taught in instructional programs for nurse's assistants.

AB461, s. 4 Section 4. 55.043 (4) (e) of the statutes is amended to read:

AB461,5,8 55.043 (4) (e) Refer the case to the department of regulation and licensing or the appropriate examining board if the abuse, neglect or misappropriation of property involves an individual who is required to be licensed, permitted, certified or registered under chs. 440 to 459 460.

AB461, s. 5 Section 5. 103.10 (1) (e) of the statutes is amended to read:

AB461,5,11 103.10 (1) (e) "Health care provider" means a person described under s. 146.81 (1), but does not include a person described under s. 146.81 (1) (hp).

AB461, s. 6 Section 6. 146.40 (1) (d) of the statutes is amended to read:

AB461,5,21 146.40 (1) (d) "Nurse's assistant" means an individual who performs routine patient care duties delegated by a registered nurse or licensed practical nurse who supervises the individual, for the direct health care of a patient or resident. "Nurse's assistant" does not mean an individual who is licensed, permitted, certified or registered under ch. 441, 448, 449, 450, 451, 455 or, 459 or 460 or an individual whose duties primarily involve skills that are different than those taught in instructional and competency evaluation programs for nurse's assistants certified under sub. (3) or evaluated by competency evaluation programs for nurse's assistants approved under sub. (3m).

AB461, s. 7 Section 7. 146.81 (1) (hp) of the statutes is created to read:

AB461,5,23 146.81 (1) (hp) A massage therapist or bodyworker licensed under ch. 460.

AB461, s. 8 Section 8. 146.81 (1) (i) and (j) of the statutes are amended to read:

AB461,6,2 146.81 (1) (i) A partnership of any providers specified under pars. (a) to (hm) (hp).

AB461,6,4 (j) A corporation or limited liability company of any providers specified under pars. (a) to (hm) (hp) that provides health care services.

AB461, s. 9 Section 9. 180.1901 (1m) (h) of the statutes is created to read:

AB461,6,7 180.1901 (1m) (h) Massage therapy and bodywork examining board under ch. 460.

AB461, s. 10 Section 10. 252.10 (7) of the statutes is amended to read:

AB461,6,18 252.10 (7) Drugs necessary for the treatment of mycobacterium tuberculosis shall be purchased by the department from the appropriation under s. 20.435 (1) (e) and dispensed to patients through the public health dispensaries or through health care providers, as defined in s. 146.81 (1), other than social workers, marriage and family therapists or professional counselors certified under ch. 457, speech-language pathologists or audiologists licensed under subch. II of ch. 459, speech and language pathologists licensed by the department of education public instruction, massage therapists or bodyworkers licensed under ch. 460 or, on or after July 1, 1995, and no later than June 30, 1999, dietitians certified under subch. IV of ch. 448.

AB461, s. 11 Section 11. 252.15 (1) (ar) 1. of the statutes is amended to read:

AB461,6,21 252.15 (1) (ar) 1. A person or entity that is specified in s. 146.81 (1), but not a massage therapist or bodyworker licensed under ch. 460.

AB461, s. 12 Section 12. 440.08 (2) (a) 46r. of the statutes is created to read:

AB461,6,24 440.08 (2) (a) 46r. Massage therapist or bodyworker: July 1 of each even-numbered year; $41.

AB461, s. 13 Section 13. 448.03 (2) (a) of the statutes is amended to read:

AB461,7,7 448.03 (2) (a) Any person lawfully practicing within the scope of a license, permit, registration, certificate or certification granted to practice professional or practical nursing or nurse-midwifery under ch. 441, to practice chiropractic under ch. 446, to practice dentistry or dental hygiene under ch. 447, to practice optometry under ch. 449, to practice acupuncture under ch. 451, to practice massage therapy or bodywork under ch. 460 or under any other statutory provision, or as otherwise provided by statute.

AB461, s. 14 Section 14. 448.10 (4) of the statutes is amended to read:

AB461,7,22 448.10 (4) Massage and hydrotherapy. Any Notwithstanding s. 460.02, any person who, on July 11, 1953, was practicing massage and hydrotherapy in this state under a certificate of registration issued pursuant to s. 147.185, 1951 stats., as it existed prior to July 11, 1953, or who had applied for a certificate of registration in massage and hydrotherapy before said date, shall have the right to continue to so practice under such certificate, and the term "massage and hydrotherapy" shall be deemed to include the use of galvanic generator, diathermy, infrared ray and ultraviolet light for massage purposes. Nothing contained in this subsection shall limit the existing authority of the board to revoke such certificate for cause, and in addition, the board may require the holder of such certificate to demonstrate by examination fitness to use the instrumentalities enumerated in this subsection. A lack of such fitness shall constitute cause for revocation of such certificate. No such certificate holder shall treat a specific disease except on the advice of a licensed physician.

AB461, s. 15 Section 15. 448.21 (1) (f) of the statutes is created to read:

AB461,7,25 448.21 (1) (f) The practice of massage therapy or bodywork within the meaning of ch. 460.

AB461, s. 16 Section 16. 451.02 (1) of the statutes is amended to read:

AB461,8,4 451.02 (1) An individual holding a license, permit or certificate under ch. 441, 446, 447, 448 or, 449 or 460 who engages in a practice of acupuncture that is also included within the scope of his or her license, permit or certificate.

AB461, s. 17 Section 17. Chapter 460 of the statutes is created to read:

AB461,8,8 Chapter 460 Massage therapy and bodywork examining board

AB461,8,9 460.01 Definitions. In this chapter:

AB461,8,12 (1) "Adjunctive therapy" includes the use of a device that simulates or enhances a manual action; the application of heat, cold, water, a mild abrasive or a topical preparation; and heliotherapy.

AB461,8,14 (2) "Examining board" means the massage therapy and bodywork examining board.

AB461,8,17 (3) "Manual action" includes holding, positioning, rocking, kneading, compressing, decompressing, gliding or percussing the soft tissue of the human body and applying friction to soft tissue.

AB461,8,19 (4) "Massage therapist or bodyworker" means a person who is licensed as a massage therapist or bodyworker under this chapter.

AB461,8,20 (5) "Massage therapy or bodywork":

AB461,9,2 (a) Means the science and healing art that uses manual actions to palpate and manipulate the soft tissue of the human body, and adjunctive therapies, to improve circulation, reduce tension, relieve soft tissue pain, or increase flexibility, and includes determining whether massage therapy or bodywork is appropriate or contraindicated, or whether a referral to another health care practitioner is appropriate.

AB461,9,3 (b) Does not include making a medical diagnosis.

AB461,9,4 (6) "Physician's office" has the meaning given in s. 101.123 (1) (dg).

AB461,9,5 (7) "Sexual contact" has the meaning given in s. 939.22 (34).

AB461,9,6 (8) "Sexual intercourse" has the meaning given in s. 948.01 (7) (a).

AB461,9,14 460.02 License required. Except as provided in s. 460.03, no person may practice massage therapy or bodywork for compensation or in the expectation of compensation, or designate himself or herself as a massage therapist or bodyworker, or use or assume the title "massage therapist and bodyworker" or "massage therapist" or "bodyworker", or append to the person's name the letters "M. T.", "L. M. T.", "B. W." or "L. B. W.", or use any other title or designation which represents or may tend to represent the person as a massage therapist or bodyworker, unless the person is licensed under this chapter.

AB461,9,16 460.03 Applicability. A license under this chapter is not required for any of the following:

AB461,9,20 (1) A person holding a license, permit, registration or certification granted by this state or the federal government who engages in a practice of massage therapy or bodywork within the scope of his or her license, permit, registration or certification and who does not imply that he or she is a massage therapist or bodyworker.

AB461,9,23 (2) A massage therapy or bodywork student practicing massage therapy or bodywork, without compensation, within the scope of the student's education or training, and under the on-premises supervision of an instructor.

AB461,9,25 (3) A massage therapist or bodyworker who is licensed to practice massage therapy or bodywork in another state or country and is providing a consultation to or demonstration with a massage therapist or bodyworker who is licensed under this chapter.

AB461,10,4 (4) A person who does any of the following and who does not imply that he or she is a massage therapist or bodyworker:

AB461,10,5 (a) Restricts his or her manipulation of soft tissue to the hands or feet.

AB461,10,7 (b) Uses touch or spoken words to increase awareness of existing or potential patterns of movement in the human body.

AB461,10,9 (c) Uses a laying on of hands to influence energy fields within or around the human body.

AB461,10,11 460.04 Duties of examining board. (1) The examining board shall assign a unique license number to each person licensed under this chapter.

AB461,10,13 (2) The examining board shall promulgate rules that establish all of the following:

AB461,10,16 (a) A code of ethics that governs the professional conduct of massage therapists or bodyworkers. The code of ethics shall prohibit a massage therapist or bodyworker from having sexual contact or sexual intercourse with a client.

AB461,10,20 (b) Criteria for approving a school of massage therapy or bodywork from which graduation is required under s. 460.05 (1) (e) 1. Rules promulgated under this paragraph shall define the curricula and qualifications of instructors that are required for approval of a school.