Amendment SSA1-SB262

SENATE SUBSTITUTE AMENDMENT 1, TO 1997 SENATE BILL 262

February 10, 1998 - Offered by Committee on Health, Human Services, Aging, Corrections, Veterans and Military Affairs.

SB262-SSA1,1,7 An Act to amend 15.085 (1m) (b), 50.39 (3), 103.10 (1) (e), 252.10 (7), 252.15 (1) (ar) 1., 448.10 (4), 895.48 (1m) (intro.), 895.48 (1m) (b) and 908.03 (6m) (a); and to create 15.406 (3), 146.81 (1) (eg), 180.1901 (1m) (bt), 440.08 (2) (a) 46r. and subchapter V of chapter 448 [precedes 448.95] of the statutes; relating to: the regulation of massage therapists and bodyworkers, creating a massage therapy and bodywork affiliated credentialing board, granting rule-making authority and providing a penalty.

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

SB262-SSA1, s. 1 Section 1. 15.085 (1m) (b) of the statutes is amended to read:

SB262-SSA1,1,12 15.085 (1m) (b) The public members of the physical therapists affiliated credentialing board and the massage therapists and bodyworkers affiliated credentialing board shall not be engaged in any profession or occupation concerned with the delivery of physical or mental health care.

SB262-SSA1, s. 2 Section 2. 15.406 (3) of the statutes is created to read:

SB262-SSA1,2,6 15.406 (3) Massage therapists and bodyworkers affiliated credentialing board. (a) There is created in the department of regulation and licensing, attached to the medical examining board, a massage therapists and bodyworkers affiliated credentialing board. The affiliated credentialing board shall consist of the following members appointed for 4-year terms:

SB262-SSA1,2,9 1. Five massage therapists or bodyworkers who are certified under subch. V of ch. 448 and have engaged in the practice of massage therapy or bodywork for at least 2 years preceding appointment.

SB262-SSA1,2,10 2. Two public members.

SB262-SSA1,2,13 (b) In appointing members under par. (a), the governor shall ensure, to the maximum extent practicable, that the membership of the affiliated credentialing board is diverse, based on all of the following factors:

SB262-SSA1,2,14 1. Massage or bodywork therapies practiced in this state.

SB262-SSA1,2,16 2. Affiliation and nonaffiliation with a professional association for the practice of massage therapy or bodywork.

SB262-SSA1,2,18 3. Professional associations with which massage therapists or bodyworkers in this state are affiliated.

SB262-SSA1,2,19 4. Practice in urban and rural areas in this state.

SB262-SSA1, s. 3 Section 3. 50.39 (3) of the statutes is amended to read:

SB262-SSA1,3,5 50.39 (3) Facilities governed by ss. 45.365, 48.62, 49.70, 49.72, 50.02, 51.09, 58.06, 252.073, 252.076 and 252.10, secured correctional facilities as defined in s. 938.02 (15m), correctional institutions governed by the department of corrections under s. 301.02 and the offices and clinics of persons licensed to treat the sick under chs. 446, 447 and 448 are exempt from ss. 50.32 to 50.39. Sections 50.32 to 50.39 do not abridge the rights of the medical examining board, physical therapists affiliated credentialing board, massage therapists and bodyworkers affiliated credentialing board, dentistry examining board, pharmacy examining board, chiropractic examining board and board of nursing in carrying out their statutory duties and responsibilities.

SB262-SSA1, s. 4 Section 4. 103.10 (1) (e) of the statutes is amended to read:

SB262-SSA1,3,8 103.10 (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) (eg).

SB262-SSA1, s. 5 Section 5. 146.81 (1) (eg) of the statutes is created to read:

SB262-SSA1,3,11 146.81 (1) (eg) A massage therapist or bodyworker certified under subch. V of ch. 448.

SB262-SSA1, s. 6 Section 6. 180.1901 (1m) (bt) of the statutes is created to read:

SB262-SSA1,3,14 180.1901 (1m) (bt) Massage therapists and bodyworkers affiliated credentialing board under subch. V of ch. 448.

SB262-SSA1, s. 7 Section 7. 252.10 (7) of the statutes, as affected by 1997 Wisconsin Act 27, is amended to read:

SB262-SSA1,4,2 252.10 (7) Drugs necessary for the treatment of mycobacterium tuberculosis shall be purchased by the department from the appropriation under s. 20.435 (5) (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 public instruction, massage therapists or bodyworkers certified under subch. V of ch. 448 or, on or after July 1, 1995, and no later than June 30, 1999, dietitians certified under subch. IV of ch. 448.

SB262-SSA1, s. 8 Section 8. 252.15 (1) (ar) 1. of the statutes is amended to read:

SB262-SSA1,4,5 252.15 (1) (ar) 1. A person or entity that is specified in s. 146.81 (1), but not a massage therapist or bodyworker certified under subch. V of ch. 448.

SB262-SSA1, s. 9 Section 9. 440.08 (2) (a) 46r. of the statutes is created to read:

SB262-SSA1,4,8 440.08 (2) (a) 46r. Massage therapist or bodyworker: July 1 of each even-numbered year; $41.

SB262-SSA1, s. 10 Section 10. 448.10 (4) of the statutes is amended to read:

SB262-SSA1,4,23 448.10 (4) Massage and hydrotherapy. Any Notwithstanding s. 448.951, 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.

SB262-SSA1, s. 11 Section 11. Subchapter V of chapter 448 [precedes 448.95] of the statutes is created to read:

SB262-SSA1,5,1 Chapter 448

SB262-SSA1,5,5 Subchapter V Massage therapists and bodyworkers affiliated credentialing board

SB262-SSA1,5,6 448.95 Definitions. In this subchapter:

SB262-SSA1,5,9 (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.

SB262-SSA1,5,11 (2) "Affiliated credentialing board" means the massage therapists and bodyworkers affiliated credentialing board.

SB262-SSA1,5,14 (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.

SB262-SSA1,5,16 (4) "Massage therapist or bodyworker" means a person who is certified as a massage therapist or bodyworker under this subchapter.

SB262-SSA1,5,17 (5) "Massage therapy or bodywork":

SB262-SSA1,5,23 (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.

SB262-SSA1,5,24 (b) Does not include making a medical diagnosis.

SB262-SSA1,5,25 (6) "Physician's office" has the meaning given in s. 101.123 (1) (dg).

SB262-SSA1,6,1 (7) "Sexual contact" has the meaning given in s. 939.22 (34).

SB262-SSA1,6,2 (8) "Sexual intercourse" has the meaning given in s. 948.01 (7) (a).

SB262-SSA1,6,9 448.951 Use of titles. Except as provided in s. 448.952, no person may designate himself or herself as a massage therapist or bodyworker, 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.", "C.M.T.", "B.W." or "C.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 certified under this subchapter.

SB262-SSA1,6,11 448.952 Applicability. A certificate under this subchapter is not required for any of the following:

SB262-SSA1,6,15 (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.

SB262-SSA1,6,18 (2) A massage therapy or bodywork student practicing massage therapy or bodywork, without compensation, within the scope of the student's education or training.

SB262-SSA1,6,22 (3) A massage therapist or bodyworker who is licensed, permitted, registered or certified 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 certified under this subchapter.

SB262-SSA1,6,24 (4) A person who restricts his or her manipulation of soft tissue to the hands or feet and who does not imply that he or she is a massage therapist or bodyworker.

SB262-SSA1,7,3 (5) A person who uses touch or spoken words to increase awareness of existing or potential patterns of movement in the human body and who does not imply that he or she is a massage therapist or bodyworker.

SB262-SSA1,7,6 448.953 Duties of affiliated credentialing board. (1) The affiliated credentialing board shall assign a unique certificate number to each person who is certified under this subchapter.

SB262-SSA1,7,8 (2) The affiliated credentialing board shall promulgate rules that establish all of the following:

SB262-SSA1,7,11 (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.

SB262-SSA1,7,17 (b) Criteria for approving a school of massage therapy or bodywork from which graduation is required under s. 448.954 (1) (e) 1. Rules promulgated under this paragraph shall define the curricula and qualifications of instructors that are required for approval of a school. The rules shall prohibit the approval of a school unless the on-premises practice of massage therapy or bodywork by a massage therapy or bodywork student is under the direct supervision of an instructor.

SB262-SSA1,7,21 (c) Criteria for approving the courses of instruction required under s. 448.954 (1) (e) 2. and 3. Rules promulgated under this paragraph shall require the course of instruction required under s. 448.954 (1) (e) 3. to consist of at least 500 classroom hours.

SB262-SSA1,7,23 (d) Requirements and procedures for obtaining the informed consent of a client under s. 448.96 (1) and for making a report required under s. 448.961 (1).

SB262-SSA1,7,24 (e) A definition of "sexually oriented business" for purposes of s. 448.96 (3).

SB262-SSA1,8,3 448.954 Certification of massage therapists or bodyworkers. (1) The affiliated credentialing board shall grant a certificate as a massage therapist or bodyworker to a person who satisfies all of the following:

SB262-SSA1,8,4 (a) Is 18 years of age or older.

SB262-SSA1,8,7 (b) Has graduated from high school or attained high school graduation equivalency as determined by the department of public instruction under s. 115.29 (4).

SB262-SSA1,8,9 (c) Submits an application for the certificate to the department on a form provided by the department.

SB262-SSA1,8,10 (d) Pays the fee specified in s. 440.05 (1).

SB262-SSA1,8,12 (e) Except as provided in sub. (2), submits evidence satisfactory to the affiliated credentialing board that he or she has done all of the following:

SB262-SSA1,8,14 1. Graduated from a school of massage therapy or bodywork approved under s. 39.51 and under rules promulgated under s. 448.953 (2) (b).

SB262-SSA1,8,17 2. Completed at least 6 classroom hours in the laws of this state and rules of the affiliated credentialing board relating to the practice of massage therapy or bodywork in a course of instruction approved by the affiliated credentialing board.

SB262-SSA1,8,21 3. Completed a minimum number of classroom hours, established by the affiliated credentialing board by rule, in a course of instruction in the principles and techniques of massage therapy or bodywork that is approved by the affiliated credentialing board.

SB262-SSA1,8,22 (f) Passes an examination under s. 448.955.

SB262-SSA1,8,25 (g) Submits evidence satisfactory to the affiliated credentialing board that he or she has in effect malpractice liability insurance coverage in an amount that is not less than $1,000,000 per occurence and $1,000,000 for all occurrences in one year.

SB262-SSA1,9,4 (2) The affiliated credentialing board may waive a requirement specified in sub. (1) (e) if a person establishes, to the satisfaction of the affiliated credentialing board, that he or she has education, training or other experience that is substantially equivalent to the requirement.

SB262-SSA1,9,8 448.955 Examination. (1) The affiliated credentialing board shall conduct or arrange for examinations for massage therapist or bodyworker certification at least semiannually and at times and places determined by the affiliated credentialing board.

SB262-SSA1,9,11 (2) Examinations shall consist of written or oral tests, or both, requiring applicants to demonstrate minimum competency in subjects substantially related to the practice of massage therapy or bodywork.

SB262-SSA1,9,16 448.956 Issuance of certificate; expiration and renewal. (1) The department shall issue a certificate of certification to each person who is certified under this subchapter. The person shall conspicuously display the certificate in the place of business where he or she practices massage therapy or bodywork so that the certificate can be easily seen and read.

SB262-SSA1,9,22 (2) The renewal dates for certificates granted under this subchapter, other than temporary certificates granted under s. 448.957, are specified under s. 440.08 (2) (a). Renewal applications shall be submitted to the department on a form provided by the department and shall include the renewal fee specified in s. 440.08 (2) (a), proof of completion of continuing education under s. 448.959 and the evidence specified in s. 448.954 (1) (g).

SB262-SSA1,9,25 448.957 Temporary certificate. Upon application and payment of the fee specified in s. 440.05 (6), the affiliated credentialing board may grant a temporary certificate as a massage therapist or bodyworker to a person who satisfies the requirements under s. 448.954 (1) (a) to (e) and (g), has submitted an application to take the next available examination under s. 448.955 and has not previously failed the examination. A temporary certificate granted under this section shall expire on the date on which the person receives the results of the examination and may not be renewed.

SB262-SSA1,10,12 448.958 Reciprocal certificate. Upon application and payment of the fee specified in s. 440.05 (2), the affiliated credentialing board shall grant a certificate as a massage therapist or bodyworker to a person who holds a similar certificate in another state or territory of the United States if the affiliated credentialing board determines that the requirements for receiving the certificate in the other state or territory are substantially equivalent to the requirements under s. 448.954 and the person submits the evidence specified in s. 448.954 (1) (g).

SB262-SSA1,10,22 448.959 Continuing education. The affiliated credentialing board shall promulgate rules establishing requirements and procedures for a massage therapist or bodyworker to complete continuing education programs or courses of study in order to qualify for renewal of his or her certificate. Rules promulgated under this section shall require a massage therapist or bodyworker to complete at least 24 hours of continuing education programs or courses of study in order to qualify for renewal. The affiliated credentialing board may waive all or part of any requirement established in rules promulgated under this section if it determines that prolonged illness, disability or other exceptional circumstances have prevented a massage therapist or bodyworker from completing the requirement.

SB262-SSA1,11,2 448.96 Practice requirements. (1) A massage therapist or bodyworker may not practice massage therapy or bodywork on a client unless the massage therapist or bodyworker first obtains the informed consent of the client and has informed the client that he or she may withdraw the consent at any time.

SB262-SSA1,11,9 (2) A massage therapist or bodyworker shall keep confidential any information that a client in confidence gives to the massage therapist or bodyworker and any other information that the massage therapist or bodyworker obtains about a client in the course of practicing massage therapy or bodywork that a reasonable person in the client's position would want kept confidential, unless the information is otherwise required by law to be disclosed or the client specifically authorizes the disclosure of the information.

SB262-SSA1,11,12 (3) A massage therapist or bodyworker may not, whether for compensation or otherwise, practice massage therapy or bodywork for a sexually oriented business, as defined by the affiliated credentialing board by rule.

SB262-SSA1,11,19 448.961 Duty to make reports. (1) A massage therapist or bodyworker shall submit a report to the affiliated credentialing board if he or she has reasonable cause to believe that another massage therapist or bodyworker has committed a crime relating to prostitution under ss. 944.30 to 944.34 or has had sexual contact or sexual intercourse with a client. If the report relates to sexual contact or sexual intercourse with a client, the report may not identify the client unless the client has provided written consent for disclosure of this information.

SB262-SSA1,11,25 (2) The affiliated credentialing board may use a report made under sub. (1) as the basis for an investigation under s. 448.964 (1). If after an investigation the affiliated credentialing board has reasonable cause to believe that a massage therapist or bodyworker has committed a crime, the affiliated credentialing board shall report the belief to the district attorney for the county in which the crime, in the opinion of the affiliated credentialing board, occurred.

SB262-SSA1,12,4 (3) If after an investigation the affiliated credentialing board determines that a report submitted under sub. (1) is without merit, the affiliated credentialing board shall remove the report from the record of the massage therapist or bodyworker who is the subject of the report.

SB262-SSA1,12,18 (4) All reports and records made from reports under sub. (1) and maintained by the department, the affiliated credentialing board, district attorneys and other persons, officials and institutions shall be confidential and are exempt from disclosure under s. 19.35 (1). Information regarding the identity of a client with whom a massage therapist or bodyworker is suspected of having sexual contact or sexual intercourse shall not be disclosed by persons who have received or have access to a report or record unless disclosure is consented to in writing by the client. The report of information under sub. (1) and the disclosure of a report or record under this subsection does not violate any person's responsibility for maintaining the confidentiality of patient health care records, as defined in s. 146.81 (4) and as required under s. 146.82. Reports and records may be disclosed only to the department, the affiliated credentialing board and the appropriate staff of a district attorney or a law enforcement agency within this state for purposes of investigation or prosecution.

SB262-SSA1,12,20 (5) (a) In this subsection, "violation" means a violation of any state or local law that is punishable by a forfeiture.

SB262-SSA1,13,4 (b) A massage therapist or bodyworker shall submit a written report to the affiliated credentialing board if he or she is convicted of a felony or misdemeanor, or is found to have committed a violation, in this state or elsewhere, and the circumstances of the felony, misdemeanor or violation substantially relate to the practice of massage therapy or bodywork. The report shall identify the date, place and nature of the conviction or finding and shall be submitted within 30 days after the entry of the judgment of conviction or the judgment finding that he or she committed the violation. If the report is submitted by mail, the report is considered to be submitted on the date that it is mailed.