HB192ENROLLED
Page 0
U9HEXX-2
By Representative Reynolds
RFD: Conference Committee on HB192
First Read: 23-Mar-23
2023 Regular Session
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Enrolled, An Act,
Relating to the Alabama Sunset Law; to continue the
existence and functioning of the Alabama Board of Massage
Therapy until October 1, 2024, with certain modifications: To
amend Sections 34-43-6, 34-43-9, 34-43-11, 34-43-12, 34-43-13,
34-43-14, 34-43-15, 34-43-20, and 34-43-21, Code of Alabama
1975, as amended by Act 2022-408, 2022 Regular Session; to
require representation on the board from each Congressional
District; to require meetings to be recorded, upon request; to
require the publication of proposed rules and related
proceedings on the board website; to require the board to
accept a criminal history check from an approved national
board under certain circumstances; and to cap certain fees
charged by the board.
BE IT ENACTED BY THE LEGISLATURE OF ALABAMA:
Section 1. Pursuant to the Alabama Sunset Law, the
Sunset Committee recommends the continuance of the Alabama
Board of Massage Therapy until October 1, 2024, with the
additional recommendation for statutory change as set out in
Section 3.
Section 2. The existence and functioning of the Alabama
Board of Massage Therapy, created and functioning pursuant to
Sections 34-43-1 to 34-43-21, inclusive, Code of Alabama 1975,
is continued until October 1, 2024, and those code sections
are expressly preserved.
Section 3. Sections 34-43-6, 34-43-9, 34-43-11,
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34-43-12, 34-43-13, 34-43-14, 34-43-15, 34-43-20, and 34-43-21
of the Code of Alabama 1975, as amended by Act 2022-408, 2022
Regular Session, are amended to read as follows:
"§34-43-6
(a) There is created the Alabama Board of Massage
Therapy. The purpose of the board is to protect the health,
safety, and welfare of the public by ensuring that licensed
massage therapists, massage therapy schools, and massage
therapy instructors meet prescribed standards of education,
competency, and practice. To accomplish this mission, the
board shall establish standards pursuant to this chapter to
complete all board functions in a timely and effective manner
and to provide open and immediate access to all relevant
public information. The board shall communicate its
responsibilities and services to the public as part of its
consumer protection duties. The board shall develop and
implement a long range plan to ensure effective regulation and
consumer protection.
(b) The board shall consist of seven members appointed
by the Governor, subject to confirmation by the Senate. No
member of the board shall serve more than two full consecutive
terms. The members initially appointed to the board shall be
appointed not later than July 16, 1996. Five of the members
initially appointed to the board shall have been actively
engaged in the practice of massage therapy for not less than
three consecutive years prior to the date of their appointment
to the board. Successor members to these initial five
appointees shall be licensees of the board. Two members shall
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be public members who shall not be licensed, nor have been
licensed in the past, and shall not have any direct financial
interest in the massage therapy profession. Each board member
shall be a high school graduate or shall have received a
graduate equivalency diploma. Each board member shall be
selected upon personal merit and qualifications, not per
membership or affiliation with an association. Each board
member shall be a citizen of the United States and this state
and a resident of this state for two years immediately
preceding the appointment. The Governor shall coordinate his
or her appointments to assure that the membership of the board
shall be is inclusive and reflect reflects the racial, gender,
geographic, urban/rural urban, rural, and economic diversity
of the state. As the terms of members serving on the board on
the effective date of the act amending this subsection expire,
or as vacancies occur, new members shall be appointed so that
not more than one member from each United States Congressional
District in the state is appointed to serve at the same time.
(c) Of the initial seven appointees to the board, three
members shall be appointed for terms ending September 30,
1997, and four members shall be appointed for terms ending
September 30, 1999. Thereafter, successors shall be appointed
for terms of four years, each term expiring on September 30.
(d) Vacancies on the board occurring prior to the
expiration of a term shall be filled by the Governor within 30
days of the vacancy to serve for the remainder of the
unexpired term. Each member of the board shall serve until his
or her successor has been duly appointed and qualified.
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(e) At the first meeting, and annually thereafter in
the month of October, the board shall elect a chair and vice
chair from its membership.
(f) The board shall hold its first meeting within 30
days after the initial members are appointed. The board shall
hold meetings during the year as it the board determines
necessary, two of which shall be the biannual meetings for the
purpose of reviewing license applications. Additional meetings
may be held at the discretion of the chair or upon written
request of any three members of the board. A quorum of the
board shall be a majority of the current appointed board
members. Upon the written request of any person, submitted to
the board at least 24 hours in advance of a scheduled meeting,
the meeting shall be recorded.
(g) Board members shall not receive compensation for
their services, but shall receive the same per diem and
allowance as provided to state employees for each day the
board meets and conducts business.
(h) The board shall adopt the rules necessary to
implement this chapter pursuant to the Administrative
Procedure Act. Proposed rules, and a schedule of proceedings
relating to their adoption, shall be conspicuously posted and
routinely updated on the website of the board.
(i) The board may employ, and at its pleasure
discharge, an executive secretary and other officers and
employees which may be necessary, including an attorney, to
implement this chapter. The board shall also outline the
duties and fix the compensation and expense allowances of the
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employees.
(j) An affirmative vote of a majority of the members of
the board shall be required to grant, suspend, or revoke a
license to practice massage therapy or a license to operate a
massage therapy establishment. The board may grant authority
to the executive director to approve licenses.
(k) The board shall be financed only from income
accruing to it the board from fees, licenses, other charges
and funds collected by it the board, and any monies that are
appropriated to it the board by the Legislature.
(l) Each board member shall be accountable to the
Governor for the proper performance of his or her duties as a
member of the board. The board shall report to the Governor
annually and at other times as requested by the Governor. The
Governor shall investigate any complaints or unfavorable
reports concerning the actions of the board and take
appropriate action thereon, including removal of any board
member for misfeasance, malfeasance, neglect of duty,
commission of a felony, incompetence, or permanent inability
to perform official duties. A board member may be removed at
the request of the board after failing to attend two
consecutive properly noticed meetings.
(m) Members of the board are immune from liability for
all good faith acts performed in the execution of their duties
as members of the board.
(n) Appointees to the board shall take the
constitutional oath of office and file it in the office of the
Governor before undertaking any duties as a board member. Upon
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receiving the oath, the Governor shall issue a certificate of
appointment to each appointee."
"§34-43-9
(a) A person desiring to be licensed as a massage
therapist shall apply to the board on forms provided by the
board. Unless licensed pursuant to subsection (b), applicants
for licensure shall submit evidence satisfactory to the board
that they have met each of the following requirements:
(1) Satisfactorily completed a minimum of 650 hours of
instruction. By rule of the board, the minimum 650 hours shall
consist of the following: 100 hours of anatomy and physiology
to include 35 hours of myology, 15 hours of osteology, 10
hours of circulatory system, and 10 hours of nervous system,
with the remaining 30 hours to address other body systems at
the discretion of the school; 250 hours of basic massage
therapy, the contradistinctions of massage therapy, and
related touch therapy modalities, to include a minimum of 50
hours of supervised massage; 50 hours to include business,
hydrotherapy, first aid, cardiopulmonary resuscitation, and
professional ethics; and 250 hours of electives to be
determined by the school. The board may adopt a rule to
further increase the minimum number of hours of instruction
required for licensure, not to exceed the number of hours
recommended by the National Certification Board for
Therapeutic Massage and Bodywork. Before performing
therapeutic massage on an animal, a massage therapist shall
graduate from a nationally approved program and complete at
least 100 hours of postgraduate training and education in
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animal anatomy, pathology, and physiology for the type of
animal upon which the massage therapist wishes to perform
therapeutic massage.
(2) Successfully passed a national standardized
examination approved by the board.
(3) Completed a criminal history check.
(4) Paid all applicable fees.
(b) Notwithstanding the requirements in subdivisions
(1) and (2) of subsection (a), the board may license an
applicant if the applicant is licensed or registered in
another state, which, in the opinion of the board, has
standards of practice or licensure that are equal to or
stricter than the requirements imposed by this chapter at the
time of licensure in that state.
(c) Notwithstanding any other provision of this section
to the contrary, each applicant for licensure shall be a
citizen of the United States or, if not a citizen of the
United States, a person who is legally present in the United
States with appropriate documentation from the federal
government.
(d) The board may shall notify each applicant that his
or her application has been received and is pending and shall
also notify each applicant of the acceptance or rejection of
his or her application. If the application is rejected, the
board shall list the reasons for rejection."
"§34-43-11
(a) Establishments shall be licensed by the board. A
sexually oriented business may not be licensed as an
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establishment and shall not operate as an establishment
licensed pursuant to this chapter.
(b) Establishments shall contract with or employ only
licensed massage therapists to perform massage therapy.
(c) Each establishment shall contract with or employ at
least one licensed massage therapist who is registered with
the board as the individual designated to ensure the
establishment follows state law and administrative rules.
(d) An establishment license issued pursuant to this
chapter is not assignable or transferable .
(e) Each unlicensed massage therapist applying for an
establishment license shall be subject to a criminal history
check or shall submit to the board proof of a completed
criminal history check performed through the National
Certification Board of Therapeutic Massage and Bodywork, or
other national certifying board approved by the board, during
the previous two-year period . No licensed massage therapist
shall be subject to an additional criminal history check when
applying for an establishment license.
(f) An establishment owned by an individual who is not
a resident of this state shall be subject to an initial
inspection before licensure. The amount of the initial
inspection fee shall be determined by rule of the board. "
"§34-43-12
(a) Applications for initial licensure or renewal shall
be on forms provided by the board and shall be accompanied by
the proper fee. A two-by-two photograph, taken no more than
six months earlier, showing a frontal view of the head and
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shoulders of the applicant, shall be submitted with the
application. All documents shall be submitted in English.
(b) Each applicant for initial licensure shall be
subject to a criminal history check. Refusal to consent to a
criminal history check constitutes grounds for the board to
deny the applicant's application for licensure.
(c) The board shall issue a license to each person who
qualifies to be a massage therapist and to each qualified
massage therapy establishment. To be qualified for a license
as a massage therapist the applicant shall successfully pass
the examination, pay the examination fee, pass the criminal
history check pursuant to rules adopted by the board, pay the
criminal history check fee, and pay the license fee. A license
grants all professional rights, honors, and privileges
relating to the practice of massage therapy.
(d) Each licensed therapist shall display his or her
license in the manner specified by the board. Each
establishment shall post its license in plain sight and the
license of each massage therapist who practices in the
establishment.
(e) A license is the property of the board and shall be
surrendered upon demand of the board."
"§34-43-13
(a) Each license shall be renewed biennially, on or
before the anniversary date, by forwarding to the board a
renewal application accompanied by the renewal fee. Each
applicant for renewal for licensure shall be subject to a
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criminal history check. Any license not renewed biennially on
or before the anniversary date shall expire.
(b) Each licensee, upon application for renewal of a
license, shall do both of the following:
(1) Submit submit evidence of satisfactory completion
of the continuing education requirements contained in Section
34-43-21.
(2) Consent to a criminal history check. Refusal to
consent to a criminal history check constitutes grounds for
the board to deny the licensee's application for renewal of
the license.
(c) Licenses are valid for two years from the date of
issuance. An individual whose license has expired and who has
ceased to practice massage therapy for a period of not longer
than five years may have his or her license reinstated upon
payment of a renewal fee and a late fee and submission of a
renewal application and evidence satisfactory to the board
that the applicant has fulfilled continuing education
requirements, passed a criminal history check pursuant to
rules adopted by the board , paid the criminal history check
fee, and passed the examination.
(d) Subsequent to an official complaint, the board may
request a criminal background check of the licensee through
the district attorney of the circuit in which the licensee is
located."
"§34-43-14
(a) By rule, the board shall assess and collect the
following fees not to exceed:
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(1) Two hundred fifty dollars ($250) One hundred
dollars ($100) for the initial massage therapist license.
(2) Three hundred dollars ($300) One hundred dollars
($100) for all biennial license renewals postmarked or
received at the office of the board by the date in on which
the license expires.
(3) Three hundred dollars ($300) One hundred dollars
($100) for the initial, and fifty dollars ($50) for any
renewal of, an establishment license.
(4) Five hundred dollars ($500) One hundred fifty
dollars ($150) for the initial registration, and any renewal
registration, as a massage therapy school in this state.
(5) Two hundred fifty dollars ($250) One hundred
dollars ($100) to register and renew registration as a massage
therapy instructor in this state.
(6) One hundred fifty dollars ($150) Seventy-five
dollars ($75) to reactivate an expired license.
(7) One hundred dollars ($100) Twenty-five dollars
($25) shall be added to all license fees not post-marked or
received by the board before the expiration date of the
license.
(8) Twenty-five dollars ($25) to verify a license.
(9) Twenty-five dollars ($25) (8) Ten dollars ($10) for
a duplicate license certificate or a name change on a license
certificate. The board may issue a duplicate certificate for
each establishment on file with the board where the massage
therapist practices massage therapy. The board may issue
additional duplicate certificates only after receiving a sworn
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letter from the massage therapist that the an original
certificate was lost, stolen, or destroyed. The records of the
board shall reflect that a duplicate certificate was issued.
(10) A fee, set by the board, for the criminal history
check.
(11) A fee, set by the board, for an establishment
inspection.
(b) Necessary administrative fees may be charged by the
board, including, but not limited to, reasonable costs for
copying, labels, and lists. Examination and license fees may
be adjusted as by rule of the board shall deem appropriate .
(c) There is hereby established a separate special
revenue trust fund in the State Treasury to be known as the
Alabama Board of Massage Therapy Fund. All receipts collected
by the board under this chapter are to shall be deposited in
this fund and used only to carry out this chapter. Such
receipts Receipts shall be disbursed only by warrant of the
state Comptroller, upon itemized vouchers approved by the
chair of the board ; provided that no . No funds shall be
withdrawn except as budgeted and allotted according to the
provisions of Sections 41-4-80 to 41-4-96, inclusive, 41-19-1,
and 41-19-12, as amended, and only in amounts as stipulated in
the general appropriations bill or other appropriations
bills."
"§34-43-15
(a) Any person may file with the board a written
complaint regarding an allegation of impropriety by a
licensee, establishment, or person. Complaints shall be made
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in the manner prescribed by the board. Complaints received by
the board shall be referred to a standing investigative
committee consisting of a board member, the Executive
Director, the board attorney, and the board investigator. If
no probable cause is found, the investigative committee may
dismiss the charges and prepare a statement, in writing, of
the reasons for the decision.
(b) If probable cause is found, the board shall
initiate an administrative proceeding. Upon a finding that the
licensee has committed any of the following instances of
misconduct, the board may suspend, revoke, or refuse to issue
or renew a license or impose a civil penalty after notice and
opportunity for a hearing pursuant to the Administrative
Procedure Act:
(1) The license was obtained by means of fraud,
misrepresentation, or concealment of material facts, including
making a false statement on an application or any other
document required by the board for licensure.
(2) The licensee sold or bartered or offered to sell or
barter a license for a massage therapist or a massage therapy
establishment.
(3) The licensee has engaged in unprofessional conduct
that has endangered or is likely to endanger the health,
safety, and welfare of the public, as defined by the rules of
the board. As used in this subdivision, unprofessional conduct
includes, but is not limited to, allowing any individual to
remain in a massage therapy establishment overnight.
(4) The licensee has been convicted of a felony or of
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any crime arising out of or connected with the practice of
massage therapy.
(5) The licensee has violated or aided and abetted in
the violation of this chapter.
(6) The licensee is adjudicated as mentally incompetent
by a court of law.
(7) The licensee uses controlled substances or
habitually and excessively uses alcohol.
(8) The licensee engaged in false, deceptive, or
misleading advertising.
(9) The licensee engaged in or attempted to or offered
to engage a client in sexual activity , including, but not
limited to, genital contact, within the client-massage
therapist relationship.
(10) The licensee has knowingly allowed the massage
therapy establishment to be used as an overnight sleeping
accommodation.
(11) The licensee had a license revoked, suspended, or
denied in any other territory or jurisdiction of the United
States for any act described in this section.
(c)(1) A person governed by this chapter who has a
reasonable belief that another massage therapist has engaged
in or attempted to or offered to engage a client in sexual
activity, as provided in subdivision (9) of subsection (b)(9),
shall inform the board in writing within 30 calendar days from
the date the person discovers this activity. Upon finding that
a person has violated this subsection, the board shall alert
local law enforcement and may do any of the following:
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a. Impose an administrative fine of not more than
twenty-five thousand dollars ($25,000) ten thousand dollars
($10,000) according to a disciplinary infraction fine schedule
adopted by rule of the board .
b. Suspend or revoke the person's license to practice
massage therapy.
(2) Upon a finding that a person has violated this
subsection three or more times, the board shall impose a
mandatory license suspension for a period of no less than
three years and a fine of twenty-five thousand dollars
($25,000) ten thousand dollars ($10,000) .
(d) Any person who has been convicted of, or entered a
plea of nolo contendere to, a crime or offense involving
prostitution or other sexual offenses offense is ineligible to
hold a license as a massage therapist for a period of at least
three years after the entry of the conviction or plea. The
board retains the right to revoke a license indefinitely if
the licensee is proven guilty of a crime or of sexual
misconduct. Reinstatement of licensure is contingent upon
proof of weekly counseling by a licensed professional
counselor.
(e) An establishment where a person has been convicted
of, or entered a plea of nolo contendere to, an offense
involving prostitution or any other type of sexual offense may
not receive a license for a massage therapy establishment for
a period of three years after the date of conviction or entry
of the plea. The board shall revoke the establishment license
of any establishment which the board determines is a sexually
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oriented business. The board may revoke an establishment
license if a person is convicted of, or enters a plea of nolo
contendere to, any crime involving prostitution or any other
sexual offense against a client which occurred on the premises
of the establishment. The violation is attached to the address
of the establishment.
(f)(1) Upon finding a person, who is governed by this
chapter, performing massage therapy without having obtained a
license, the board may do any of the following:
a. Impose an administrative fine of not more than
twenty-five thousand dollars ($25,000) ten thousand dollars
($10,000).
b. Issue a cease and desist order.
c. Petition the circuit court of the county where the
act occurred to enforce the cease and desist order and collect
the assessed fine.
(2) Any person aggrieved by any adverse action of the
board must shall appeal the action to the Circuit Court of
Montgomery County in accordance with the Alabama
Administrative Procedure Act.
(g) The board shall present any incident of misconduct
to the local district attorney for review and appropriate
action.
(h) The board may adopt rules to implement and
administer this section."
"§34-43-20
(a) To be approved by the board, a massage therapy
school shall meet all of the following requirements:
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(1) File a completed application prescribed by the
board with the board and pay a registration fee as specified
in Section 34-43-14.
(2) Provide documentation of a curriculum which
includes a minimum number of required hours of instruction in
the subjects required pursuant to Section 34-43-9.
(3) Register annually with the board by filing a
renewal form, accompanied with by the renewal fee pursuant to
Section 34-43-14, and submit a current curriculum and a list
of instructors.
(b) Every instructor teaching course work titled
massage therapy at a board approved school located in Alabama
shall be licensed in Alabama as a massage therapist and
registered as a massage therapy instructor. Instructors who
are not teaching massage therapy do not need to be registered.
Any adjunct instructors shall be dually licensed in the state
where they reside , or be nationally certified, or both.
(c) The board shall register as a massage therapy
instructor any applicant who meets all of the following
requirements:
(1) Is currently licensed as a massage therapist in
Alabama.
(2) Has filed a completed application prescribed by the
board and paid a one-time application fee pursuant to Section
34-43-14.
(3) Documents three years of experience in the practice
of massage therapy. The documentation may be considered by the
board on a case-by-case basis.
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(4) Any other requirements adopted by rule of the
board."
"§34-43-21
(a) The board is subject to the Alabama Sunset Law of
1981, and is classified as an enumerated agency pursuant to
Section 41-20-3. The board shall automatically terminate on
October 1, 2007, and every four years thereafter, unless
continued pursuant to the Alabama Sunset Law.
(b) The board shall adopt a program of continuing
education for licensees which shall be a requisite for the
renewal of licenses issued pursuant to this chapter and not
exceed the requirements of a board approved nationally
recognized board certification organization such as the
National Certification Board of Therapeutic Massage and
Bodywork."
Section 4. This act shall become effective on July 1,
2023, following its passage and approval by the Governor, or
its otherwise becoming law.
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________________________________________________
Speaker of the House of Representatives
________________________________________________
President and Presiding Officer of the Senate
House of Representatives
I hereby certify that the within Act originated in and
was passed by the House 06-Apr-23.
John Treadwell
Clerk
Senate 18-Apr-23 Amended and Passed
House 03-May-23 Passed, as amended
by Conference Committee
Senate 06-Jun-23 Passed, as amended
by Conference Committee
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