Amendment ASA1-SB262

LRBs0652/1

MDK:jlg:lp

1997 - 1998 LEGISLATURE

ASSEMBLY SUBSTITUTE AMENDMENT 1, TO 1997 SENATE BILL 262

March 24, 1998 - Offered by Representatives Otte and Riley.

SB262-ASA1,1,7 An Act to renumber 180.1901 (1m) (a); to amend 50.01 (2), 103.10 (1) (e), 146.40 (1) (d), 146.81 (1) (i) and (j), 252.10 (7), 252.15 (1) (ar) 1., 440.042 (1), 895.48 (1m) (intro.), 895.48 (1m) (b) and 908.03 (6m) (a); and to create 146.81 (1) (hp), 180.1901 (1m) (ag), 440.08 (2) (a) 67q. and subchapter X of chapter 440 [precedes 440.97] of the statutes; relating to: registration of massage therapists and bodyworkers, 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-ASA1, s. 1 Section 1. 50.01 (2) of the statutes is amended to read:

SB262-ASA1,2,4 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 subch. X of ch. 440 or ch. 441, 448, 449, 450, 451, 455 or 459 or a person whose duties primarily involve skills that are different than those taught in instructional programs for nurse's assistants.

SB262-ASA1, s. 2 Section 2. 103.10 (1) (e) of the statutes is amended to read:

SB262-ASA1,2,7 103.10 (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).

SB262-ASA1, s. 3 Section 3. 146.40 (1) (d) of the statutes is amended to read:

SB262-ASA1,2,17 146.40 (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 subch. X of ch. 440 or ch. 441, 448, 449, 450, 451, 455 or 459 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).

SB262-ASA1, s. 4 Section 4. 146.81 (1) (hp) of the statutes is created to read:

SB262-ASA1,2,20 146.81 (1) (hp) A massage therapist or bodyworker issued a license of registration under subch. X of ch. 440.

SB262-ASA1, s. 5 Section 5. 146.81 (1) (i) and (j) of the statutes are amended to read:

SB262-ASA1,2,23 146.81 (1) (i) A partnership of any providers specified under pars. (a) to (hm) (hp).

SB262-ASA1,2,25 (j) A corporation or limited liability company of any providers specified under pars. (a) to (hm) (hp) that provides health care services.

SB262-ASA1, s. 6 Section 6. 180.1901 (1m) (a) of the statutes is renumbered 180.1901 (1m) (ar).

SB262-ASA1, s. 7 Section 7. 180.1901 (1m) (ag) of the statutes is created to read:

SB262-ASA1,3,4 180.1901 (1m) (ag) The department of regulation and licensing under subch. X of ch. 440.

SB262-ASA1, s. 8 Section 8. 252.10 (7) of the statutes, as affected by 1997 Wisconsin Act 27, is amended to read:

SB262-ASA1,3,16 252.10 (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 massage therapists or bodyworkers issued a license of registration under subch. X of ch. 440, 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 or, on or after July 1, 1995, and no later than June 30, 1999, dietitians certified under subch. IV of ch. 448.

SB262-ASA1, s. 9 Section 9. 252.15 (1) (ar) 1. of the statutes is amended to read:

SB262-ASA1,3,20 252.15 (1) (ar) 1. A person or entity that is specified in s. 146.81 (1), but does not include a massage therapist or bodyworker issued a license of registration under subch. X of ch. 440.

SB262-ASA1, s. 10 Section 10. 440.042 (1) of the statutes is amended to read:

SB262-ASA1,4,5 440.042 (1) The secretary may appoint persons or advisory committees to advise the department and the boards, examining boards and affiliated credentialing boards in the department on matters relating to the regulation of credential holders. The secretary shall appoint an advisory committee to advise the department on matters relating to carrying out the duties specified in s. 440.972 and making investigations, conducting hearings and taking disciplinary action under s. 440.976. A person or an advisory committee member appointed under this subsection shall serve without compensation, but may be reimbursed for his or her actual and necessary expenses incurred in the performance of his or her duties.

SB262-ASA1, s. 11 Section 11. 440.08 (2) (a) 67q. of the statutes is created to read:

SB262-ASA1,4,8 440.08 (2) (a) 67q. Registered massage therapist or bodyworker: March 1 of each odd-numbered year; $41.

SB262-ASA1, s. 12 Section 12. Subchapter X of chapter 440 [precedes 440.97] of the statutes is created to read:

SB262-ASA1,4,11 Chapter 440

SB262-ASA1,4,14 Subchapter X Registry of massage therapists and bodyworkers

SB262-ASA1,4,15 440.97 Definitions. In this subchapter:

SB262-ASA1,4,18 (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-ASA1,4,21 (2) "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-ASA1,4,23 (3) "Massage therapist or bodyworker" means a person who engages in massage therapy or bodywork.

SB262-ASA1,4,24 (4) "Massage therapy or bodywork":

SB262-ASA1,5,6 (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-ASA1,5,7 (b) Does not include making a medical diagnosis.

SB262-ASA1,5,9 (5) "Registrant" means a person who is issued a license of registration under this subchapter.

SB262-ASA1,5,15 440.9705 Applicability. This subchapter does not apply to a person holding a license, permit, registration or certification granted by this state or the federal government who engages in the practice of massage therapy or bodywork within the scope of his or her license, permit, registration or certification and who does not use any title or description that implies that he or she is registered under this subchapter or represent himself or herself to be registered under this subchapter.

SB262-ASA1,5,21 440.971 Use of title. (1) No person may use the title "Wisconsin registered massage therapist and bodyworker", "Wisconsin registered massage therapist" or "Wisconsin registered bodyworker", use any title or description that implies that he or she is registered under this subchapter or represent himself or herself to be registered under this subchapter unless the person has been issued a license of registration as a massage therapist or bodyworker under this subchapter.

SB262-ASA1,5,23 (2) This subchapter does not prohibit a person who is not a registrant from engaging in the practice of massage therapy or bodywork.

SB262-ASA1,5,25 440.972 Duties of department. (1) The department shall do all of the following:

SB262-ASA1,6,3 (a) Promulgate rules establishing requirements and standards for the practice of massage therapy or bodywork by a registrant, including a code of ethics that governs a registrant's practice of massage therapy or bodywork.

SB262-ASA1,6,8 (b) Promulgate rules establishing the education, training or competency requirements that a person must satisfy in order to be issued a license of registration under this subchapter. The rules may require a person to pass an examination, administered or approved by the department, to determine fitness to practice massage therapy or bodywork.

SB262-ASA1,6,13 (c) Establish and update on at least a bimonthly basis a registry of persons who are issued a license of registration under this subchapter. The department shall make the registry available for public inspection and copying and in any other manner that, as determined by the department, facilitates public access to the registry.

SB262-ASA1,6,16 (2) The department may promulgate rules that establish continuing education requirements that a person must satisfy to be eligible to renew a license of registration that is issued under this subchapter.

SB262-ASA1,6,19 440.973 Registration requirements. The department shall issue a license of registration as a massage therapist or bodyworker to a person who does all of the following:

SB262-ASA1,6,21 (1) Submits an application for the license to the department on a form provided by the department.

SB262-ASA1,6,22 (2) Pays the fee specified in s. 440.05 (1).

SB262-ASA1,6,24 (3) Subject to ss. 111.321, 111.322 and 111.335, submits evidence satisfactory to the department that he or she does not have an arrest or conviction record.

SB262-ASA1,7,2 (4) Submits evidence satisfactory to the department that he or she satisfies the requirements established in rules promulgated under s. 440.972 (1) (b).

SB262-ASA1,7,6 (5) Submits evidence satisfactory to the department that he or she has liability insurance in an amount approved by the department that is not less than $50,000 or that he or she qualifies as a self-insurer on such terms and conditions as the department considers appropriate.

SB262-ASA1,7,11 440.974 Reciprocal registration. Upon application and payment of the fee specified in s. 440.05 (2), the department may issue a license of registration as a massage therapist or bodyworker to a person who has been issued a similar license, registration or certificate by another state or territory of the United States or another country if all of the following apply:

SB262-ASA1,7,14 (1) The person is not currently under investigation for a matter related to his or her practice of massage therapy or bodywork in the other state, territory or country.

SB262-ASA1,7,16 (2) The person has never been disciplined for a matter related to his or her practice of massage therapy or bodywork in the other state, territory or country.

SB262-ASA1,7,18 (3) Subject to ss. 111.321, 111.322 and 111.335, the person does not have an arrest or conviction record.

SB262-ASA1,7,21 (4) The person is not currently a party in pending litigation in which it is alleged that he or she is liable for damages for acts committed in the course of the practice of massage therapy or bodywork.

SB262-ASA1,7,24 (5) The person has never been found liable for damages for acts committed in the course of the practice of massage therapy or bodywork which evidenced a lack of ability or fitness to practice massage therapy or bodywork.

SB262-ASA1,7,25 (6) The person submits the evidence specified in s. 440.973 (5).

SB262-ASA1,8,4 440.975 Renewal of registration. The renewal dates for licenses of registration issued under this subchapter are specified in s. 440.08 (2) (a). Renewal applications shall be submitted to the department on a form provided by the department and shall include all of the following:

SB262-ASA1,8,5 (1) The renewal fee specified in s. 440.08 (2) (a).

SB262-ASA1,8,8 (2) Evidence satisfactory to the department that the applicant has completed any continuing education requirements specified in rules promulgated under s. 440.972 (2).

SB262-ASA1,8,12 (3) Evidence satisfactory to the department that the applicant has liability insurance in an amount approved by the department that is not less than $50,000 or that he or she qualifies as a self-insurer on such terms and conditions as the department considers appropriate.

SB262-ASA1,8,16 440.976 Disciplinary proceedings and actions. (1) Subject to the rules promulgated under s. 440.03 (1), the department may make investigations and conduct hearings to determine whether a violation of this subchapter or any rule promulgated under this subchapter has occurred.

SB262-ASA1,8,19 (2) Subject to the rules promulgated under s. 440.03 (1), the department may reprimand a registrant, or may deny, limit, suspend or revoke a license of registration, if an applicant or registrant has done any of the following:

SB262-ASA1,8,21 (a) Made a material misstatement in an application for a license of registration or for renewal of a license of registration.

SB262-ASA1,8,24 (b) Subject to ss. 111.321, 111.322 and 111.335, been convicted of an offense the circumstances of which substantially relate to the practice of massage therapy or bodywork.

SB262-ASA1,9,3 (c) Been adjudicated mentally incompetent by a court of competent jurisdiction, a certified copy of the record of adjudication of incompetency to be conclusive evidence of such incompetency.

SB262-ASA1,9,4 (d) Advertised in a manner that is false, deceptive or misleading.

SB262-ASA1,9,6 (e) Advertised, practiced or attempted to practice massage therapy or bodywork under another's name.

SB262-ASA1,9,9 (f) Subject to ss. 111.321, 111.322 and 111.34, engaged in the practice of massage therapy or bodywork while the person's ability to engage in the practice was impaired by alcohol or other drugs.

SB262-ASA1,9,12 (g) Violated any standard relating to the practice of massage therapy or bodywork established by the department in the rules promulgated under s. 440.972 (1) (a).

SB262-ASA1,9,15 (h) Engaged in conduct while practicing massage therapy or bodywork which jeopardizes the health, safety or welfare of a client or which evidences a lack of knowledge or ability to apply professional principles or skills.

SB262-ASA1,9,16 (i) Committed a crime related to prostitution under ss. 944.30 to 944.34.

SB262-ASA1,9,18 (j) Aided another person in violating this subchapter or any rule promulgated under this subchapter.

SB262-ASA1,9,19 (k) Violated this subchapter or any rule promulgated under this subchapter.

SB262-ASA1,9,23 (2m) In addition to or in lieu of a reprimand or denial, limitation, suspension or revocation of a license of registration under sub. (2), the department may assess against an applicant or registrant a forfeiture of not more than $1,000 for each violation enumerated under sub. (2).

SB262-ASA1,9,25 (3) In lieu of proceeding under sub. (2), the department may place, in the registry established under s. 440.972 (1) (c), a copy of a complaint received by the department against a registrant, the registrant's response to the complaint and a copy of any records of the department concerning the complaint. The department shall use the following procedure in placing information in the registry under this subsection: