Rule-Making Notices (Hearing Notices)

Wis. Admin. Code chapters RL 90 to 94.

Plain language analysis:

The proposed revisions to Chapters RL 90 to 94 are necessary to implement Chapter 460 of the Wisconsin Statutes pursuant to 2001 Wisconsin Act 74, governing the certification of massage therapists and bodyworkers. The proposed rules will in part modify the requirements necessary for qualified applicants, reciprocal certification, acceptable training programs, waivers of education requirements, renewals, acts constituting unprofessional conduct, and the handling of complaints by the department relating to specified allegations of sexual misconduct.

SECTION 1 changes “registration" to “credentialing."

SECTION 2 repeals and recreates language relating to application requirements which must be met for a credential to be issued.

SECTION 3 creates two new definitions – “approved training program" and “certificate holder."

SECTION 4 amends the definition of “classroom hour."

SECTION 5 repeals the definition of “course of instruction."

SECTION 6 creates the definition of “insured."

SECTION 7 amends the definitions of “manual action" and “massage therapy or bodywork."

SECTION 8 repeals the definition of “registrant."

SECTION 9 creates definitions of “policyholder," “sexual contact," “sexual intercourse" and “sexually oriented business."

SECTION 10 changes “registration" to “a certificate."

SECTIONS 11, 13 and 14 make changes relating to application requirements which must be met for a credential to be issued.

SECTION 12 creates a note indicating where to find a list of approved schools.

SECTION 15 creates s. RL 91.015, relating to the waiver of education requirements necessary for a credential to be granted.

SECTIONS 16, 17, 18, 19, 20, 21, 22, 23 and 24 make changes relating to the requirements for the granting of a reciprocal certificate and defines that the requirements for a current similar license, registration or certificate to practice massage therapy or bodywork in another state or territory of the United States or another country, are substantially equivalent to the requirements under s. 460.05, Stats., if the requirements include certification by the National Certification Board for Therapeutic Massage and Bodywork or any other organization accredited by the National Commission for Certifying Agencies to certify massage therapy or bodywork; or completion of at least 500 classroom hours of instruction in massage therapy or bodywork at a school approved by an accrediting agency.

SECTION 25 changes “registration" to “certification."

SECTION 26 creates s. RL 91.05, a grandfathering provision for the granting of a certificate as a massage therapist or bodyworker.

SECTION 27 amends s. RL 92.01, to include new requirements for an approved training program.

SECTION 28 repeals a provision that is no longer necessary.

SECTION 29 amends s. RL 92.01 (4), to include new requirements for an approved training program.

SECTION 30 repeals a provision that is no longer necessary.

SECTIONS 31, 32, 33 and 34 amend rules relating to renewal and conform the nomenclature of these sections to Chapter 460, Stats.

SECTION 35 amends the title of s. RL 93.01 from “Violations of standards of practice" to “Unprofessional conduct." Section RL 94.01 (6) is amended relating to the requirements for obtaining informed consent from a patient. Section RL 94.01 (9) is amended relating to the failure to keep confidential information received from a client. Section RL 94.01 (16) is amended relating to the failure by a credential holder to cooperate in a timely manner with the department's investigation of complaints filed against a credential holder. Section RL 94.01 (19) is amended to change a reference from “registrant" to “certificate holder." Section RL 94.01 (20) is amended to change a reference from “unregistered" to “uncertified." Section RL 94.01 (26) is amended relating to the failure to maintain premises according to standards recognized by the massage therapy or bodywork profession. Section RL 94.01 (27) is amended relating to a certificate holder notifying the department for the conviction of a crime.

SECTION 36 creates a note where complaint forms may be obtained.

SECTION 37 deletes “of registration" in s. RL 94.01 (28) deletes.

SECTION 38 creates additional violations of unprofessional conduct. Section RL 94.01 (29) is created to prohibit practicing massage therapy or bodywork, whether for compensation or not, for a sexually oriented business. Section RL 94.01 (30) is created to prohibit having sexual contact or sexual intercourse with a client that occurs on or after March 1, 2003. Section RL 94.01 (31) is created relating to the failure to make a report as required under s. RL 94.02. And s. RL 94.01 (32) is created to clarify permissible advertising by a certificate holder.

SECTION 39 creates s. RL 94.02 relating to the submission of reports to the department if a certificate holder has reasonable cause to believe that another certificate holder has committed a crime relating to prostitution under ss. 944.30 to 944.34, Stats., or has had sexual contact or sexual intercourse with a client.

Summary of, and comparison with, existing or proposed federal regulation:

No federal regulation exists.

Summary of factual data and analytical methodologies:

The provisions of 2001 Wisconsin Act 74 and 2005 Wisconsin Act 25 were reviewed to determine the appropriate provisions of then existing Wis. Admin. Code Chapters RL 90 to 94 which required amending for conformity. 2001 Wisconsin Act 74 and 2005 Wisconsin Act 2005 also required the creation of new rule provisions in Chapters RL 90 to 94. The proposed rules were submitted to the Massage Therapy and Bodyworker Council for review and comments as required by s. 460.04 (3), Stats.

Massage Therapy and Bodyworker Council Comments – (April 13, 2004)

MOTION: Amy Remillard moved, seconded by Mary Ellen Martin, to change the three hours [education requirements] from CPR to a science portion of the rules. Motion carried unanimously.

Department response: change made.

MOTION: Amy Remillard moved, seconded by Vlad Thomas, to change the rule [informed consent] to read, “practice massage therapy or body work on a client without first obtaining the written informed consent of the client and has informed the client they may withdraw at any time." Motion carried unanimously at today's meeting.

Department response: change made.

Analysis and supporting documents used to determine effect on small business:

The proposed amendments to the department's administrative rules, Chapters RL 90 to 94, represent a recodification and clarification of existing administrative rules of the department. These amended rules do not represent any significant change in terms of increasing or decreasing existing requirements on the certification of governance of Massage Therapist and Bodyworkers, therefore no additional effect on small business or economic impact is anticipated.

Section 227.137, Stats., requires an “agency" to prepare an economic impact report before submitting the proposed rule-making order to the Wisconsin Legislative Council. The Department of Regulation and Licensing is not included as an “agency" in this section.

Anticipated costs incurred by private sector:

The department finds that this rule has no significant fiscal effect on the private sector.

Fiscal estimate

The department estimates that this rule will require staff time in the Division of Professional Credentialing. The total staff salary and fringe is estimated at $230.

Effect on small business

These proposed rules will have no significant economic impact on small businesses, as defined in s. 227.114 (1), Stats. The Department's Regulatory Review Coordinator may be contacted by email at [e-mail] by calling [phone].

Contact Person

Pamela Haack, Paralegal, Department of Regulation and Licensing, Office of Legal Counsel, 1400 East Washington Avenue, Room 152, P.O. Box 8935, Madison, Wisconsin 53708-8935. Telephone: [phone]. Email: [e-mail].

Written Comments

Comments may be submitted to Pamela Haack at the Department of Regulation and Licensing, Office of Legal Counsel, 1400 East Washington Avenue, Room 152, P.O. Box 89235, Madison, Wisconsin 53708-8935. Email to [e-mail]. Comments must be received on or before July 21, 2006, to be included in the record of rule-making proceedings.

TEXT OF RULE

SECTION 1. RL 90.01 is amended to read:

RL 90.01 Authority and intent. The rules in chs. RL 90 to 94 are adopted by the department pursuant to ss. s. 227.11 (2), Stats., and 440.982 ch. 460, Stats., to govern the registration credentialing of massage therapists and bodyworkers.

SECTION 2. RL 90.02 (1) (b) is repealed and recreated to read:

RL 90.02 (1) (b) A state government agency or territorial government agency located in another state or territory of the United States or another country.

SECTION 3. RL 90.02 (1g) and (1r) are created to read:

RL 90.02 (1g) “Approved training program" means a series of classroom courses, not including continuing education, which is approved by the department having a unified purpose which led to a diploma or degree or to an occupational or vocational objective, meeting the requirements of s. RL 92.01.

(1r) “Certificate holder" means a person granted a certificate under ch. 460, Stats.

SECTION 4. RL 90.02 (2) is amended to read:

RL 90.02 (2) “Classroom hour" means a period of instruction in an approved course consisting of not less than 50 minutes.

SECTION 5. RL 90.02 (3) is repealed.

SECTION 6. RL 90.02 (5m) is created to read:

RL 90.02 (5m) “Insured" means any person to whom or for whose benefit an insurer makes a promise in an insurance policy. The term includes policyholders, subscribers, members, and beneficiaries.

SECTION 7. RL 90.02 (6) and (8) are amended to read:

RL 90.02 (6) “Manual action" includes holding, positioning, rocking, kneading, compressing, decompressing, gliding or percussing the soft tissue of the human body and or applying friction to soft tissue a passive range of motion to the human body.

(8) “Massage therapy or bodywork" means the science and healing art that uses manual actions to palpate and manipulate the soft tissue of the human body, in order 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 referral to another health care practitioner is appropriate. Massage therapy or bodywork does not include making a medical or chiropractic diagnosis or instructing in or prescribing rehabilitative strengthening or conditioning exercises that are within the practice of physical therapy, as defined in s. 448.50 (4), Stats.

SECTION 8. RL 90.02 (9) is repealed.

SECTION 9. RL 90.02 (10) to (13) are created to read:

RL 90.02 (10) “Policyholder" means the person who controls the policy by ownership, payment of premiums, or otherwise.

(11) “Sexual contact" has the meaning given in s. 939.22 (34), Stats.

(12) “Sexual intercourse" has the meaning given in s. 948.01 (7) (a), Stats.

(13) “Sexually oriented business" means keeping a place of prostitution as defined in s. 944.34, Stats.

SECTION 10. RL 91.01 (title), (intro.) and (2) are amended to read:

RL 91.01 (title) Application for registration a certificate. (intro.) An individual applying for registration a certificate as a massage therapist or bodyworker shall submit all of the following:

(2) The fee required specified in s. 440.05 (1), Stats.

SECTION 11. RL 91.01 (3) (a) is repealed and recreated to read:

RL 91.01 (3) (a) Has graduated from a school of massage therapy or bodywork approved by the educational approval board at the time of the applicant's graduation or completed an approved training program as described in s. RL 92.01.

SECTION 12. A Note following RL 91.01 (3) (a) is created to read:

Note: A list of approved schools is available upon request to the Educational Approval Board at 30 West Mifflin Street, 9th Floor, P.O. Box 8696, Madison, Wisconsin 53708, or the department at 1400 East Washington Avenue, P.O. Box 8935, Madison, Wisconsin 53708.

SECTION 13. RL 91.01 (3) (b), (c), (d), (e) and (f) are renumbered RL 91.01 (3) (f), (i), (g), (h) and (j), and as renumbered RL 91.01 (3) (f), (g), (i) and (j) are amended to read:

RL 91.01 (3) (f) Subject to ss. 111.321, 111.322 and 111.335, Stats., does not have a conviction record has not been convicted of any other offense not listed in par. (e), the circumstances of which substantially relate to the practice of massage therapy or bodywork.

(g) Has passed either the national certification examination for therapeutic massage and bodywork or the national certification examination for therapeutic massage that are offered by the national certification board for therapeutic massage and bodywork, or a substantially equivalent another examination approved relating to the practice of massage therapy or bodywork that is administered by a national board that is accredited by the national commission of certifying agencies of the national organization for competency assurance or that is developed, administered or a substantially equivalent examination approved by the department relating to the practice of massage therapy or bodywork.

(i) Has in effect as a policyholder and insured, malpractice liability insurance coverage in an amount that is not less than $1,000,000 per occurrence and $1,000,000 for all occurrences in one year.

(j) Has successfully completed a course consisting of 8 5 classroom hours in adult cardiopulmonary resuscitation and standard first aid, unless if the individual has not graduated from a school of massage therapy or bodywork approved by the educational approval board and the 8 5 classroom hours are not completed as part of a course of instruction by the individual as part of an approved training program as provided under s. RL 92.01 (5) (e) (4) (f).

SECTION 14. RL 91.01 (3) (b) to (e) are created to read:

RL 91.01 (3) (b) Has successfully completed at least 6 classroom hours of study in the laws of this state and rules of the department relating to the practice of massage therapy or bodywork in a course of instruction offered by any of the following:

1. A school of massage therapy or bodywork approved by the educational approval board, whether or not the course of instruction was completed to meet a requirement for graduation.

2. An approved training program whether or not the training program is completed by the individual for purposes of satisfying par. (a).