51 N.J.R. 1157(a)

VOLUME 51, ISSUE 14, JULY 15, 2019
RULE PROPOSALS

INTERESTED PERSONS
Interested persons may submit comments, information or arguments concerning any of the rule proposals in this issue until the date indicated in the proposal. Submissions and any inquiries about submissions should be addressed to the agency officer specified for a particular proposal.

The required minimum period for comment concerning a proposal is 30 days. A proposing agency may extend the 30-day comment period to accommodate public hearings or to elicit greater public response to a proposed new rule or amendment. Most notices of proposal include a 60-day comment period, in order to qualify the notice for an exception to the rulemaking calendar requirements of    N.J.S.A. 52:14B-3. An extended comment deadline will be noted in the heading of a proposal or appear in a subsequent notice in the Register.

At the close of the period for comments, the proposing agency may thereafter adopt a proposal, without change, or with changes not in violation of the rulemaking procedures at    N.J.A.C. 1:30-6.3. The adoption becomes effective upon publication in the Register of a notice of adoption, unless otherwise indicated in the adoption notice. Promulgation in the New Jersey Register establishes a new or amended rule as an official part of the New Jersey Administrative Code.

Proposed Readoption with Amendments: N.J.A.C. 13:37A

Proposed Repeals and New Rules: N.J.A.C. 13:37A-2.2, 2.4, and 2.5

Proposed New Rules: N.J.A.C. 13:37A-2.2A, 3.8, 3.9, 3.10. 5.4, and 6.3
Text

Rules of the Board of Massage and Bodywork Therapy

Authorized By: Board of Massage and Bodywork Therapy, ToniAnn Petrella-Diaz, Executive Director.
Authority: N.J.S.A. 45:11-67.

Calendar Reference: See Summary below for explanation of exception to calendar requirement.
Proposal Number: PRN 2019-106.

Submit comments by September 13, 2019, to:

   ToniAnn Petrella-Diaz, Executive Director
   New Jersey Board of Massage and Bodywork Therapy
   Division of Consumer Affairs
   124 Halsey Street
   PO Box 47032
   Newark, New Jersey 07101
   or electronically at: http://www.njconsumeraffairs.gov/Proposals/Pages/default.aspx.

The agency proposal follows:

Summary
The Board of Massage and Bodywork Therapy (Board) proposes to readopt N.J.A.C. 13:37A with new rules, amendments, and repeals. These rules were scheduled to expire on September 4, 2019, pursuant to N.J.S.A. 52:14B-5.1. As the Board filed this notice of readoption prior to the expiration date, that date is extended 180 days to March 2, 2020, pursuant to N.J.S.A. 52:14B-5.1.c(2).

In compliance with Executive Order No. 66 (1978), the Board undertook a thorough review of the existing provisions of N.J.A.C. 13:37A in order to delete unnecessary or unreasonable rules. The Board believes that the rules proposed for readoption with amendments, repeals, and new rules, are necessary, reasonable, understandable, and responsive to the purposes for which they were originally promulgated. The rules have had a beneficial impact on the regulation and conduct of the massage and bodywork profession by enabling the Board to have in place procedures that serve and protect the public's best interests. The following summarizes N.J.A.C. 13:37A and the proposed new rules, amendments, and repeals.

Subchapter 1 sets forth the purpose of Chapter 37A and definitions used throughout the rules. N.J.A.C. 13:37A-1.1 sets forth the purpose and scope of the rules and the individuals to whom the chapter does not apply. N.J.A.C. 13:37A-1.2 provides definitions for terms used throughout the chapter. The Board proposes to amend this rule to provide a new definition for the term "employer" and to delete the definitions of "full-time practice" and "part-time practice." The rule in which these two terms were used deals with licensing provisions that expired in 2013, and the terms will no longer be used in the chapter.

Subchapter 2 sets forth standards for applying for initial licensure and renewing licensure. N.J.A.C. 13:37A-2.1 contains requirements for obtaining a license. The Board proposes to amend this rule to establish that the education an applicant completes to qualify for licensure must be completed no more than five years prior to submitting an application. The proposed amendments revise cross-references to reflect new provisions in the rule.

The Board proposes to repeal existing N.J.A.C. 13:37A-2.2, License without examination based on licensure in another state, and replace it with proposed new N.J.A.C. 13:37A-2.2, Licensure by reciprocity, which establishes standards for issuing licenses to applicants who are licensed in other states and incorporate standards from N.J.S.A. 45:1-7.5. Under the proposed new rule, an applicant would be issued a license if the Board determines that the state in which the applicant is licensed has standards for licensure substantially equivalent to Board standards and the applicant has been practicing for at least three years within a five-year period prior to applying for a license. An applicant would have to submit documentation from every state in which he or she is currently licensed or was ever licensed indicating that his or her licenses are in good standing. An applicant would also have to undergo a criminal history background check and designate an agent in New Jersey for service of process if he or she will not reside or have an office in New Jersey. The proposed amendments provide standards for determining if a license is in good standing and whether an examination is substantially similar to that required by the Board. The Board would be permitted to revoke a license obtained through fraud, deception, or misrepresentation. The Board could grant a license to an applicant whose license was not in good standing due to a pending action, disciplinary proceeding, or criminal charge, as long as the alleged conduct that is the subject of the action, proceeding, or charge was not related to practicing massage and bodywork therapy.

Proposed new N.J.A.C. 13:37A-2.2A establishes standards as to when the Board may consider an application for licensure abandoned. An application for a license will be deemed abandoned if the applicant has not submitted all of the information and documentation required to obtain a license and two years have elapsed since the first notice was sent to the applicant regarding the deficiencies in his or her application. If an application is deemed abandoned, the Board will close the application without notice to the applicant and dispose of any information or documentation submitted by the applicant pursuant to the Division of Consumer Affairs' record retention plan. An applicant whose application has been deemed abandoned may reapply for licensure.

N.J.A.C. 13:37A-2.3 sets forth renewal requirements for licensees. The Board proposes to amend this rule to incorporate licensure renewal requirements from N.J.S.A. 45:1-7.1. The existing rule requires licensees to renew licenses every two years by submitting renewal applications and renewal fees. The Board is required to send out notices of renewal to licensees at least 60 days prior to the expiration of licenses. Licensees are permitted to renew within 30 days of license expiration by paying a late renewal fee. Licensees who do not renew a license during this 30-day late period are then suspended. The rule provides different requirements for license reinstatement depending on the number of years a license was suspended. The rule permits licensees to renew as inactive. Inactive licensees cannot practice massage and bodywork therapy until a license is reactivated. The proposed amendments to N.J.A.C. 13:37A-2.3 provide new wording for provisions regarding license renewal, inactive licensure, and suspension of licensure for failure to renew in order to conform to wording in N.J.S.A. 45:1-7.1. The proposed amendments delete provisions regarding reinstatement and reactivation of licensure. These provisions are addressed in proposed new N.J.A.C. 13:37A-2.4 and 2.5.

Existing N.J.A.C. 13:37A-2.4 provides that the Board will issue a license to any individual who is certified by the Massage, Bodywork, and Somatic Therapy Examining Committee on September 4, 2012. Any individuals who were so certified have been issued a Board license and this provision is no longer necessary. The Board proposes to repeal and replace N.J.A.C. 13:37A-2.4 with standards for the reactivation of licensure pursuant to N.J.S.A. 45:1-7.4. Under proposed new N.J.A.C. 13:37A-2.4, a licensee seeking to reactivate a license would be required to submit a renewal application, a certification of employment listing jobs held while a license was inactive, and the active renewal fee. Under existing N.J.A.C. 13:37A-2.3, a licensee is required to complete the continuing education credits for every biennial period the licensee was on inactive status. Proposed new N.J.A.C. 13:37A-2.4 requires licensees to submit evidence of completion of the continuing education credits required for the current renewal period. The proposed new rule permits licensees to satisfy continuing education requirements by showing that they completed the requirements of another state in which they were licensed. The proposed new rule permits the Board to require a licensee [page=1158] to pass an examination, complete a refresher course, or meet any other Board-imposed requirement, if the Board determines that there is a reason to conclude that the licensee would not be able to practice safely. The proposed new rule provides criteria for determining if a practice deficiency exists.

Existing N.J.A.C. 13:37A-2.5 allows individuals practicing as massage and bodywork therapists prior to September 4, 2012, to apply for a license without passing a licensing examination or completing all of the education required of non-practicing applicants. This provision expired on August 30, 2013, therefore, the Board proposes to repeal existing N.J.A.C. 13:37A-2.5. In its place, the Board proposes new N.J.A.C. 13:37A-2.5 to incorporate license reinstatement standards from N.J.S.A. 45:1-7.4. Under the proposed new rule, licensees seeking to reinstate a license are required to submit a reinstatement application, a certification of employment listing jobs held during the period a license was suspended, and a reinstatement fee. The proposed new rule revises the reinstatement process from existing N.J.A.C. 13:37A-2.3. Under that process, licensees with suspended licenses are required to submit every past due renewal fee. Proposed new N.J.A.C. 13:37A-2.5 requires licensees applying for reinstatement to submit the current renewal fee and the past due fee from the last renewal period. Existing N.J.A.C. 13:37A-2.3 requires licensees to complete the continuing education credits for every renewal period the license was suspended. Proposed new N.J.A.C. 13:37A-2.5 requires licensees to submit evidence of completion of the continuing education credits required for the current renewal period. The proposed new rule permits a licensee to satisfy continuing education requirements by showing that he or she completed the requirements of another state in which he or she was licensed. Existing N.J.A.C. 13:37A-2.3 requires licensees seeking to reinstate licenses more than five years after being suspended to complete education courses in massage and bodywork therapy or to pass the licensing examination. The proposed new rule permits the Board to require a licensee to pass an examination, complete a refresher course, or meet any other Board-imposed requirement, if the Board determines that there is a reason to conclude that a licensee would not be able to practice safely. The proposed new rule provides criteria for determining if a practice deficiency exists.

Subchapter 3 sets forth requirements for professional practice. N.J.A.C. 13:37A-3.1 establishes the scope of practice for licensees. A licensee is limited to practicing those methods of massage and bodywork therapy that he or she learned or developed. Licensees are prohibited from performing vaginal or penile massages or animal therapy; applying electrical current to the body; or diagnosing illness, disease, impairment, or disability. N.J.A.C. 13:37A-3.2 establishes standards to prevent the spread of infections. The rule requires licensees to wash hands and any skin that comes in contact with clients before and after massage and bodywork therapy sessions. It sets standards for washing linens and disinfecting equipment and tools used during therapy sessions. The rule also establishes procedures to ensure that lubricants are dealt with in a sanitary manner. N.J.A.C. 13:37A-3.3 sets forth titles that licensees are permitted to use and prohibited titles for individuals who are not licensed by the Board. N.J.A.C. 13:37A-3.4 requires licensees to have their license visible while providing massage and bodywork services.  N.J.A.C. 13:37A-3.5 addresses sexual misconduct. The rule prohibits licensees from engaging in sexual contact with a client while a client-therapist relationship is ongoing. They are also prohibited from seeking sexual contact with a client or with any person in exchange for professional services or from engaging in sexual harassment inside or outside of the professional setting. The rule does not prevent a licensee from rendering massage services to a spouse, provided such services are consistent with accepted standards and are not used to exploit the spouse. N.J.A.C. 13:37A-3.6 requires licensees to notify the Board of a change in address or legal name. N.J.A.C. 13:37A-3.7 requires licensees to have clients read and sign a patient acknowledgement form.

Proposed new N.J.A.C. 13:37A-3.8 requires licensees to report to the Board when they believe a violation of N.J.S.A. 45:11-53 et seq., and 45:1-14 et seq., and N.J.A.C. 13:45C or 13:37A has occurred. The proposed new rule also notifies licensees that they are required to report to the Division of Consumer Affairs Health Care Professional Information Clearing House Coordinator and the Board when they possess information that indicates that another licensee or health care professional poses an imminent danger to an individual or the public health, safety, or welfare due to an impairment, gross incompetence, or unprofessional conduct.
Proposed new N.J.A.C. 13:37A-3.9 establishes definitions used in the rule and sets forth information that licensees must report to the Board within 10 days. This includes when a licensee cannot discharge professional functions, is subject to action by criminal authorities, is a defendant in a civil suit involving professional misconduct, is subject to action by employers, or is subject to disciplinary action by licensing authorities, the Department of Health, or professional organizations. Licensees reporting such information will have to provide explanations. Failure to report this information could be deemed professional misconduct.

Proposed new N.J.A.C. 13:37A-3.10 requires a licensee to provide services only when a client's parent or guardian has provided written consent if the client is under the age of 18. If a client is under the age of 16, a licensee could only provide services if the client's parent or guardian is in the room while services are provided.

Subchapter 4 deals with continuing education requirements. N.J.A.C. 13:37A-4.1 requires licensees to complete 20 credit hours of continuing education, including two credit hours in ethics, every biennial period. N.J.A.C. 13:37A-4.2 sets forth how licensees may obtain continuing education hours. N.J.A.C. 13:37A-4.3 details how the Board will perform random audits of licensees to ensure compliance with continuing education requirements. The rule also requires licensees to maintain records of the continuing education credits hours they have completed for four years. N.J.A.C. 13:37A-4.4 permits the Board to waive continuing education requirements for reasons of hardship. N.J.A.C. 13:37A-4.5 permits the Board to require licensees to complete additional continuing education credit hours as part of discipline or when a licensee has not met continuing education requirements.

Subchapter 5 sets forth permitted and prohibited business practices. N.J.A.C. 13:37A-5.1 deals with advertising. The rule establishes the information that must be provided in advertising and claims and statements that cannot be made in advertisements. The rule also sets forth recordkeeping requirements for licensees who have engaged in advertising. The Board proposes to amend this rule to prohibit licensees from offering to provide services that would qualify as sexual misconduct pursuant to N.J.A.C. 13:37A-3.5 in advertisements.

N.J.A.C. 13:37A-5.2 requires licensees to maintain client records. The Board proposes to amend this rule to require licensees to maintain records in a safe and secure location. N.J.A.C. 13:37A-5.3 requires licensees to provide records to a client upon request. A licensee is permitted to charge a fee for reproduction of records. The rule also requires licensees to maintain the confidentiality of client records and sets forth to whom client records may be released.

Proposed new N.J.A.C. 13:37A-5.4 establishes standards for records kept on computers. A licensee who uses a computer to maintain records must use a program that contains date and time recordation for all entries, automatically prepares a back-up of a file, and is designed so that, once an entry is "signed" by a licensee, the entry cannot be changed. Client records maintained on computers must include two forms of identification. Licensees will be required to finalize an entry by means of a confidential personal code. If more than one person can make entries in a record, each such person must have a confidential personal code. Licensees will be required to generate a hard copy of a client's record upon request and ensure the hard copy is properly paginated.

Subchapter 6 deals with the registration of businesses that offer massage and bodywork therapies. N.J.A.C. 13:37A-6.1 requires registration of individuals or entities that employ licensees to provide massage and bodywork therapies. Schools and health care institutions are exempt from this registration requirement. The rule sets forth the information that must be submitted to the Board in order to register. Registration must be renewed every two years. N.J.A.C. 13:37A-6.2 requires the Board to suspend or revoke registration if an individual or entity submitted false information in its registration application or failed to demonstrate that every employee performing massage services is licensed by the Board.

Proposed new N.J.A.C. 13:37A-6.3 requires registration holders to notify the Board within 10 days of a change in the name and address of business locations, the owner or responsible party for the registration [page=1159] holder, and any actions by criminal authorities. Registration holders would have to provide an explanation of the information reported and failure to notify the Board could be deemed professional misconduct.

Subchapter 7 sets forth the fees the Board will charge for the services it provides.

The Board has determined that the comment period for this notice of proposal shall be 60 days; therefore, pursuant to N.J.A.C. 1:30-3.3(a)5, this notice is excepted from the rulemaking calendar requirement.

Social Impact
The proposed readoption with new rules, amendments, and repeals will continue to ensure proper care of clients. The rules establish practice standards and ensure that licensees remain accountable to the public and the Board. The proposed readoption of the existing rules also benefits the Board and licensees by providing procedures for the orderly administration of the Board and by establishing clear practice guidelines.

Proposed new N.J.A.C. 13:37A-2.4 and 2.5 will make it easier for licensees to resume practicing after a period of inactivation or suspension. The proposed new rules allow licensees to satisfy the Board's continuing education requirements by submitting proof of compliance with another state's continuing education requirements. Licensees seeking reinstatement will no longer be required to complete an education course or retake the licensing examination if the period of administrative suspension is for more than five years. The Board will have the flexibility to determine if remediation is necessary to continue to ensure the safety and welfare of the public. Proposed amendments to N.J.A.C. 13:37A-5.2 will ensure that records are kept secure. Proposed new N.J.A.C. 13:37A-5.4 will help to ensure that records kept on computers are not altered after services are provided.

Economic Impact
Some of the rules proposed for readoption with amendments, new rules, and repeals will have an economic impact on applicants for licensure, licensees, and entities that employ licensees.

Subchapter 2 imposes costs on applicants for licensure. An applicant is required to complete a course of study and to take a licensing examination. Applicants bear the cost of tuition for a course of study and the fees for taking the examination. Proposed new N.J.A.C. 13:37A-2.2 imposes costs on applicants who are licensed in other states. Such applicants will be required to submit evidence that they have been practicing for at least three years in other states. Proposed new N.J.A.C. 13:37A-2.4 and 2.5 require applicants for reactivation or reinstatement to submit certifications of employment and evidence of completion of continuing education requirements. These new rules will have a positive economic impact on applicants for reinstatement in that they will not be automatically required to take an education course or pass a licensing examination if they have been suspended for more than five years.

Subchapter 3 imposes costs on licensees by setting forth infection control precaution requirements. Subchapter 4 requires licensees to complete continuing education courses every biennial renewal period. The costs of these courses are set by the sponsors who offer them. Subchapter 5 imposes costs by setting recordkeepingrequirements for licensees. Proposed new N.J.A.C. 13:37A-5.4 imposes additional costs on licensees who maintain records on computers. Subchapter 6 imposes costs on entities that employ licensees.

N.J.A.C. 13:37A-7.1 sets forth the fees that the Board assesses for services rendered to its licensees. The fee schedule has an economic impact on licensees, applicants for licensure, and employers by establishing fees that they have to pay in order for the Board to be self-funding and in compliance with N.J.S.A. 45:1-3.2.

Federal Standards Statement
A Federal standards analysis is not required because there are no Federal laws or standards applicable to the rules proposed for readoption with new rules, amendments, and repeals.

Jobs Impact
The Board does not believe that the rules proposed for readoption with new rules, amendments, and repeals will increase or decrease the number of jobs in New Jersey.

Agriculture Industry Impact
The Board does not believe that the rules proposed for readoption with new rules, amendments, and repeals will have any impact on the agriculture industry of this State.

Regulatory Flexibility Analysis
Since massage and bodywork therapists and employers are individually licensed or registered by the Board, under the Regulatory Flexibility Act (Act), N.J.S.A. 52:14B-16 et seq., they may be considered "small businesses" for the purposes of the Act.

The costs imposed by the rules proposed for readoption with new rules, amendments, and repeals are the same for all licensees and registered employers as outlined above in the Economic Impact statement. The Board does not believe that licensees or registered employers will need to employ any professional services to comply with the requirements of the rules proposed for readoption with new rules, amendments, and repeals. The rules proposed for readoption with new rules, amendments, and repeals imposes compliance, reporting, and recordkeeping requirements as detailed in the Summary above.

As the compliance, reporting, and recordkeeping requirements contained in the rules proposed for readoption with new rules, amendments, and repeals are necessary to adequately regulate licensees and registered employers, and to protect consumers who use their services, the Board believes that the rules must be uniformly applied to all licensees and registered employers and no exemptions are provided based on the size of the business.

Housing Affordability Impact Analysis
The rules proposed for readoption with new rules, amendments, and repeals will have an insignificant impact on the affordability of housing in New Jersey and there is an extreme unlikelihood that the rules would evoke a change in the average costs associated with housing because the rules proposed for readoption with amendments, new rules, and repeals concern the regulation of licensed massage and bodywork therapists and registered employers.

Smart Growth Development Impact Analysis
The rules proposed for readoption with new rules, amendments, and repeals will have an insignificant impact on smart growth and there is an extreme unlikelihood that the rules would evoke a change in housing production in Planning Areas 1 or 2, or within designated centers, under the State Development and Redevelopment Plan in New Jersey because the rules proposed for readoption with new rules, amendments, and repeals concern the regulation of licensed massage and bodywork therapists and registered employers.

Racial and Ethnic Community Criminal Justice and Public Safety Impact
The Board has evaluated this rulemaking and determined that it will not have an impact on pretrial detention, sentencing, probation, or parole policies concerning adults and juveniles in the State. Accordingly, no further analysis is required.

Regulations

Full text of the rules proposed for repeal may be found in the New Jersey Administrative Code at N.J.A.C. 13:37A-2.2, 2.4, and 2.5.

Full text of the rules proposed for readoption may be found in the New Jersey Administrative Code at N.J.A.C. 13:37A.

Full text of the proposed new rules and amendments follows (additions indicated in boldface thus; deletions indicated in brackets [thus]):

SUBCHAPTER 1.   PURPOSE AND DEFINITIONS

13:37A-1.2   Definitions
The following words and terms, when used in this chapter, shall have the following meanings:

…
"Employer" means a person seeking to obtain individuals to perform services, tasks, or labor for which a salary, wage, or other compensation or benefits are to be paid.
…

[page=1160] ["Full-time practice" means a person has provided a minimum of 500 hours of massage and bodywork therapies to clients and/or students during a year.]

…

["Part-time practice" means a person has provided a minimum of 250 hours of massage and bodywork therapies to clients and/or students during a year.]

SUBCHAPTER 2.   LICENSURE

13:37A-2.1   Application for licensure

(a) (No change.)

(b)An applicant shall have completed the course of study required by (a) above no more than five years prior to submitting an application for licensure to the Board. A course of study completed more than five years prior to submission shall not qualify an applicant for licensure.

[(b)] (c) An individual who applies for a license shall submit to the Board:

1. (No change.)

2. An official transcript, which indicates that the applicant has completed an associate degree in massage and bodywork or a course of study outlined in [(c)] (d) below from a school accredited or approved by:

i.-iv. (No change.)

3.-6. (No change.)

[(c)] (d) (No change in text.)

[(d)] (e) For purposes of [(c)] (d) above, one credit in a course taken in a college or university shall constitute 15 hours of course study.

[(e)] (f) Hours completed during one area of a course of study in massage and bodywork therapy shall not be counted towards completion of another area of that course. For example, one hour spent performing massage, bodywork, and somatic therapy that is completed as part of theory and practice pursuant to [(c)3] (d)3 above shall not be counted towards the 100 hours of clinical practice required by [(c)5] (d)5 above.

[(f)] (g) (No change in text.)

13:37A-2.2        Licensure by reciprocity

(a) Upon receipt of a completed application, application fee, consent to a criminal history record background check, and requisite fee for such a check, the Board shall issue a license to any person who holds a valid, current license in good standing issued by another state, if:

1. The Board determines that the state that issued the license has, or had at the time of issuance, education, training, and examination requirements for licensure substantially equivalent to the current Board standards;

2. The applicant has been practicing massage and bodywork therapy for a period of at least three years within the five years prior to the date of application; and

3. The requirements of (b) below are satisfied.

(b) Prior to the issuance of the license, the Board shall have received:

1. Documentation from any state in which the applicant is, or was ever, licensed or certified that the applicant's license(s) is in good standing;

2. The results of a criminal history record background check of the files of the Criminal Justice Information Services Division in the Federal Bureau of Investigation and the State Bureau of Identification in the Division of State Police that does not disclose a conviction for a disqualifying crime; and

3. Designation of an agent in New Jersey for service of process if the applicant is not a New Jersey resident or does not have an office in New Jersey.

(c) For purposes of this section, "good standing" means that:

1. No action has been taken against the applicant's license by any licensing board;

2. No action adversely affecting the applicant's privileges to practice massage and bodywork therapy has been taken by any out-of-State institution, organization, or employer;

3. No disciplinary proceeding is pending that could affect the applicant's privileges to practice massage and bodywork therapy;

4. All fines levied by any out-of-State board have been paid; and

5. There is no pending or final action by any criminal authority for violation of law, rule, or regulation, or any arrest or conviction for any criminal or quasi-criminal offense under the laws of the United States, New Jersey, or any other state, including: criminal homicide; aggravated assault; sexual assault, criminal sexual contact, or lewdness; or any offense involving any controlled dangerous substance or controlled dangerous substance analog.

(d) For purposes of this section, a "substantially equivalent" examination need not be identical to the current examination requirements of New Jersey, but such examination shall be nationally recognized and of comparable scope and rigor.

(e) The Board, after the licensee has been given notice and an opportunity to be heard, may revoke any license based on a license issued by another state obtained through fraud, deception, or misrepresentation.

(f) The Board may grant a license to an applicant seeking reciprocity who does not meet the good standing requirement of (a) above due to a pending action by a licensing board, a pending action by an out-of-State institution, organization, or employer affecting the applicant's privileges to practice, a pending disciplinary proceeding, or a pending criminal charge or arrest for a crime provided the alleged conduct of the applicant that is the subject of the action, proceeding, charge, or arrest does not demonstrate a serious inability to practice massage and bodywork therapy, adversely affect the public health, safety, or welfare, or result in economic or physical harm to a person, or create a significant threat of such harm.
13:37A-2.2A     Abandonment of application for licensure

(a) An application for a license submitted to the Board will be deemed abandoned if:

1. The individual applying for the license has not submitted to the Board all of the information and documentation required to obtain a license; and

2. Two years have elapsed since the first notice to the applicant was sent by the Board informing him or her that the Board had not received all of the information and documentation required for licensure.

(b) If an application for licensure is deemed abandoned pursuant to (a) above, the Board shall administratively close the application without notice to the applicant and shall dispose of any information or documentation submitted by the applicant pursuant to the Division of Consumer Affairs' record retention plan.

(c) An individual whose application for licensure has been administratively closed by the Board pursuant to (a) above may reapply for licensure pursuant to N.J.A.C. 13:37A-2.1.

13:37A-2.3   Renewal of license
(a) (No change.)

(b) The Board shall send a notice of renewal to each licensee at the address registered with the Board, at least 60 days prior to the expiration of the license. The notice of renewal shall explain inactive renewal and advise the licensee of the option to renew as inactive. If the notice to renew is not sent at least 60 days prior to the expiration date, no monetary penalties or fines shall apply to the holder for any unlicensed practice during the period following the licensure expiration, [not to exceed the number of days short of 60 before the renewal was issued] provided that the license is renewed within 60 days from the date the notice is sent or within 30 days following the date of license expiration, whichever is later.

(c) The licensee shall submit the renewal application and pay the renewal fee pursuant to N.J.A.C. 13:37A-7.1 prior to the date of expiration of the license. [A licensee who fails to renew the license within 30 days after the expiration date of the license shall be administratively suspended without a hearing.]

(d)A licensee may renew his or her license by choosing inactive status. A licensee electing to renew as inactive shall not engage in the practice of massage and bodywork therapy, or hold him- or herself out as eligible to engage in the practice of massage and bodywork therapy, in New Jersey until such time as the license is returned to active status.
[page=1161] (e) If a licensee does not renew the license prior to its expiration date, the licensee may renew the license within 30 days of its expiration by submitting a renewal application, a renewal fee, and a late fee as set forth in N.J.A.C. 13:37A-7.1. During this 30-day period, the license shall be valid and the licensee shall not be deemed practicing without a license.

(f) A licensee who fails to submit a renewal application within 30 days of license expiration shall have his or her license suspended without a hearing.

[(d)] (g) Individuals who continue to practice or hold themselves out as State-licensed massage and bodywork therapists [after being suspended shall be deemed to have violated N.J.S.A. 45:11-73] with a suspended license shall be deemed to be engaging in the unlicensed practice of massage and bodywork therapy and shall be subject to action consistent with N.J.S.A. 45:1-14 et seq., even if no notice of suspension had been provided to the person.

[(e) A person seeking reinstatement within five years following the suspension of a license shall submit the following to the Board:

1. A completed reinstatement application;

2. Payment of the past delinquent renewal fees as set forth in N.J.A.C. 13:37A-7.1;

3. Payment of a reinstatement fee as set forth in N.J.A.C. 13:37A-7.1;

4. A certification verifying completion of the continuing education credits for each biennial period that the applicant was suspended; and

5. An affidavit of employment listing each job held during the period of suspension that includes the names, addresses, and telephone numbers of each employer.

(f) A person seeking reinstatement after more than five years following the suspension of a license shall satisfy the requirements of

(e) above and shall either:

1. Successfully complete a course designed to prepare a person to pass the FSTMB, NCBTMB or NCCAOM examination from a school that meets the requirements of N.J.A.C. 13:37A-2.1(b)2; or

2. Take and successfully pass the FSMTB, NCBTMB or NCCAOM examination.

(g) Renewal applications for all licenses shall provide the licensee with the option of either active or inactive renewal. Licensees electing to renew as inactive shall not practice or hold themselves out to the public as State-licensed massage and bodywork therapists.

(h) Upon application to the Board, the Board may permit a licensee who has been on inactive status to return to active status provided such applicant completes the continuing education credits that are required per biennial period for each biennial period that the applicant is on inactive status and holds current certification in CPR, Firstaid, and use of an automated external defibrillator (AED) from courses offered by the American Heart Association or a substantially similar course approved or offered by the American Red Cross, the National Safety Council, Coyne First Aid, Inc., the American Safety and Health Institute, EMP International Inc., or EMS Safety Services Inc.]

13:37A-2.4        License reactivation

(a) A licensee who holds an inactive license pursuant to N.J.A.C. 13:37A-2.3(d) may apply to the Board for reactivation of an inactive license. A licensee seeking reactivation of an inactive license shall submit:

1. A renewal application;

2. A certification of employment listing each job held during the period of inactive license, which includes the name, address, and telephone number of each employer;

3. The active renewal fee set forth in N.J.A.C. 13:37A-7.1; and

4. Evidence of having completed all continuing education credits for the current biennial registration period, consistent with the requirements set forth in N.J.A.C. 13:37A-4.1.

(b) An applicant who holds a valid, current license in good standing issued by another state to engage in the practice of massage and bodywork therapy and submits proof of having satisfied that state's continuing education requirements, shall be deemed to have satisfied the requirements of (a)4 above. If the other state does not have any continuing education requirements, the requirements of (a)4 above apply.

(c) If a Board review of an application establishes a basis for concluding that there may be practice deficiencies in need of remediation prior to reactivation, the Board may require the applicant to submit to and successfully pass an examination or an assessment of skills, a refresher course, or other requirements as determined by the Board prior to reactivation of the license. If that examination or assessment identifies deficiencies or educational needs, the Board may require the applicant as a condition of reactivation of licensure to take and successfully complete education or training, or to submit to supervision, monitoring, or limitations, as the Board determines necessary to assure that the applicant practices with reasonable skill and safety. The Board may restore the license subject to the applicant's completion of training within a period of time prescribed by the Board following the restoration of the license. In making its determination whether there are practice deficiencies requiring remediation, the Board shall consider the following factors including, but not limited to:

1. Length of time license was inactive;

2. Employment history;

3. Professional history;

4. Disciplinary history and any action taken against the applicant's license or registration by any professional or occupational board;

5. Actions affecting the applicant's privileges taken by any institution, organization, or employer related to the practice of massage and bodywork therapy or other professional or occupational practice in New Jersey, any other state, the District of Columbia, or in any other jurisdiction;

6. Pending proceedings against a professional or occupational license issued to the licensee by a professional or occupational board in New Jersey, any other state, the District of Columbia, or in any other jurisdiction; and

7. Civil litigation related to the practice of massage and bodywork therapy or other professional or occupational practice in New Jersey, any other state, the District of Columbia, or in any other jurisdiction.
13:37A-2.5        License reinstatement

(a) A licensee who has had his or her license suspended pursuant to N.J.A.C. 13:37A-2.3(f) may apply to the Board for reinstatement. A licensee applying for reinstatement shall submit:

1. A reinstatement application;

2. A certification of employment listing each job held during the period of suspended license, which includes the name, address, and telephone number of each employer;

3. The renewal fee set forth in N.J.A.C. 13:37A-7.1 for the biennial period for which reinstatement is sought;

4. The past due renewal fee for the biennial period immediately preceding the renewal period for which reinstatement is sought;

5. The reinstatement fee set forth in N.J.A.C. 13:37A-7.1; and

6. Evidence of having completed all continuing education credits for the current biennial registration period, consistent with the requirements set forth in N.J.A.C. 13:37A-4.1.

(b) An applicant who holds a valid, current license in good standing issued by another state to engage in the practice of massage and bodywork therapy and submits proof of having satisfied that state's continuing education requirements, shall be deemed to have satisfied the requirements of (a)6 above. If the other state does not have any continuing education requirements, the requirements of (a)6 above apply.

(c) If a Board review of an application establishes a basis for concluding that there may be practice deficiencies in need of remediation prior to reinstatement, the Board may require the applicant to submit to and successfully pass an examination or an assessment of skills, a refresher course, or other requirements as determined by the Board prior to reinstatement of the license. If that examination or assessment identifies deficiencies or educational needs, the Board may require the applicant as a condition of reinstatement of licensure to take and successfully complete education or training, or to submit to supervision, monitoring, or limitations, as the Board determines necessary to assure that the applicant practices with reasonable skill and safety. The Board may [page=1162] restore the license subject to the applicant's completion of training within a period of time prescribed by the Board following the restoration of the license. In making its determination whether there are practice deficiencies requiring remediation, the Board shall consider the following factors including, but not limited to:

1. Length of time license was suspended;

2. Employment history;

3. Professional history;

4. Disciplinary history and any action taken against the applicant's license by any professional or occupational board;

5. Actions affecting the applicant's privileges taken by any institution, organization, or employer related to the practice of massage and bodywork therapy or other professional or occupational practice in New Jersey, any other state, the District of Columbia, or in any other jurisdiction;

6. Pending proceedings against a professional or occupational license issued to the licensee by a professional or occupational board in New Jersey, any other state, the District of Columbia, or in any other jurisdiction; and

7. Civil litigation related to the practice of massage and bodywork therapy or other professional or occupational practice in New Jersey, any other state, the District of Columbia, or in any other jurisdiction.

SUBCHAPTER 3.   PROFESSIONAL PRACTICE

13:37A-3.8        Reporting of misconduct

(a) A licensee shall report to the Board any incident or series of incidents that the licensee, in good faith, believes is in violation of the Massage and Bodywork Therapist Licensing Act, N.J.S.A. 45:11-53 et seq., 45:1-14 et seq., N.J.A.C. 13:45C, or this chapter.

(b) Pursuant to N.J.A.C. 13:45E-3.2, a licensee who is in possession of information that reasonably indicates that another licensee or other health care professional has demonstrated an impairment, gross incompetence, or unprofessional conduct that would present an imminent danger to an individual or to the public health, safety, or welfare shall file a report with the Division of Consumer Affairs Health Care Professional Information Clearing House Coordinator and the Board.

13:37A-3.9        Duty to report

(a) The following words and terms, when used in this section, shall have the following meanings unless the context clearly indicates otherwise.
"Conviction" means a judgment of conviction entered following plea agreement or trial on an arrest, indictment, accusation, or bill of particulars in a state or Federal criminal proceeding, or the resolution of such charges, whether by a plea of no contest or nolo contendere or by pre-trial diversion program.
"Disciplinary order" means a disposition suspending or revoking licensure privileges or imposing civil penalties or ordering the restoration of money or ordering corrective action or medical or other professional treatment or monitoring, or censuring or reprimanding a licensee.
"Licensing authority" means any professional or occupational licensing board charged with granting, suspending, or revoking licensure or certification privileges.
"Medical condition" includes physiological, mental, or psychological conditions or disorders, such as, but not limited to, orthopedic, visual, speech, or hearing impairments, cerebral palsy, epilepsy, muscular dystrophy, multiple sclerosis, cancer, heart disease, diabetes, mental retardation, emotional or mental illness, specific learning disabilities, HIV disease, tuberculosis, drug addiction, and alcoholism.

(b) A licensee shall provide notice to the Board in writing within 10 days regarding any of the following:

1. If the licensee is incapable, for medical condition or any other good cause, of discharging the functions of a licensee in a manner consistent with the public's health, safety, and welfare;

2. Pending or final actions by criminal authorities for violations of law, rule, or regulation, or any arrest or conviction for any criminal or quasi-criminal offense pursuant to the laws of the United States, this State, or another state, including, but not limited to, being indicted or convicted of a crime involving moral turpitude or a crime adversely relating to his or her practice;

3. Being named as a defendant or respondent in a civil, criminal, or administrative investigation, complaint, or judgment involving alleged malpractice, negligence, or misconduct relating to his or her practice;

4. Actions by an employer grounded, in whole or in part, upon client care concerns that actions condition, curtail, limit, suspend, or revoke employment;

5. Disciplinary actions by state licensing authorities including, but not limited to, being the subject of any voluntary license or certification surrender or any disciplinary action or order by any state or Federal agency, board, or commission, including any order of limitation or preclusion;

6. Actions by the Department of Health; or

7. Actions by professional review organizations or utilization review organizations.

(c) For each item listed in (b) above, the licensee shall provide an explanation therefor.

(d) Failure by a licensee to provide the Board with notice of any information required pursuant to this section within the required time period of the change or the event necessitating the filing of the notice may be deemed professional misconduct within the meaning of N.J.S.A. 45:1-21.e.

13:37A-3.10      Client age

(a) If a client is under the age of 18, a licensee shall provide massage and bodywork services only when the client's parent or legal guardian has provided written consent to the licensee providing services to the client.

(b) If a client is under the age of 16, a licensee shall provide massage and bodywork services only when the client's parent or legal guardian is in the room while services are being provided.

SUBCHAPTER 5.   BUSINESS PRACTICES

13:37A-5.1   Advertising and solicitation practices

(a)-(b) (No change.)

(c) A licensee who engages in the use of advertising that contains any of the following shall be deemed to be engaged in professional misconduct:

1. (No change.)

2. Any promotion of a professional service for which:

i. (No change.)

ii. The licensee claims to have developed, unless the licensee developed such service and it is taught, or has been taught, in a course offered by a provider approved by the NCBTMB, NCCAOM, American Massage Therapy Association (AMTA), Associated Bodywork and Massage Professionals (ABMP), FSMTB, American Nurse Credentialing Center (ANCC), American Organization for Bodywork Therapies of Asia (AOBTA), American Polarity Therapy Association (APTA), American Physical Therapy Association (APTA), American Medical Association (AMA), International Association of Structural Integrators (IASI), Ida P. Rolf Research Foundation, a state board of massage, a state board of massage and bodywork, a state board of physical therapy, or a state board of chiropractic; [or]

3. The communication of any fact, data, or information that may personally identify a client without that client's signed written permission obtained in advance[.]; or

4.Any offer to provide services that would qualify as sexual misconduct pursuant to N.J.A.C. 13:37A-3.5.
(d)-(h) (No change.)

13:37A-5.2   Recordkeeping

(a) Licensees shall make contemporaneous, permanent entries into client records that shall accurately reflect the massage and bodywork services rendered. Client records shall be maintained in a safe and secure location for a period of seven years from the date of the most recent entry. The client record shall contain, at a minimum:
1.-6. (No change.)
[page=1163] (b) (No change.)

13:37A-5.4        Use of computer to prepare client records

(a) A licensee who prepares a patient record maintained solely on a computer shall use a write-protected program that:

1. Contains an internal permanently activated date and time recordation for all entries;

2. Automatically prepares a back-up copy of the file; and

3. Is designed in such a manner that, after the licensee "signs" by means of a confidential personal code (CPC), the entry cannot be changed in any manner.

(b) The licensee shall include in the client record at least two forms of identification; for example, name and record number of the patient or any other specific identifying information.

(c) The licensee shall finalize or "sign" the entry by means of a CPC. Where more than one individual is authorized to make entries into the computer file of any client record, each such person shall obtain a CPC and uses the program in the same manner.

(d) The licensee shall generate a hard copy of the complete client record, or a portion thereof, upon request.

(e) A licensee who generates a hard copy of a patient record pursuant to (d) above shall ensure that the hard copy is paginated with each page being a specified number of the total number of pages in the record.

SUBCHAPTER 6.   BUSINESS REGISTRATION

13:37A-6.3        Duty to report

(a) A registration holder shall provide notice to the Board in writing, on such forms as the Board may require and within 10 days, of any changes, additions, or deletions pertaining to the following information last provided by the registration holder on the biennial renewal form or initial application:

1. The name and address of the business locations;

2. The owner/responsible party of the registration holder; and

3. Pending or final actions by criminal authorities for violations of law, rule, or regulation, or any arrest or conviction for any criminal or quasi-criminal offense pursuant to the laws of the United States, this State, or any other state, including, but not limited to, being indicted or convicted of a crime involving moral turpitude or a crime adversely relating to his or her practice.

(b) For each item listed in (a) above, the registration holder shall provide an explanation therefor.

(c) Failure by a registration holder to provide the Board with notice of any information required pursuant to this section within the required time period of the change or the event necessitating the filing of the notice may be deemed professional misconduct within the meaning of N.J.S.A. 45:1-21.e.

NEW JERSEY REGISTER
Copyright © 2019 by the New Jersey Office of Administrative Law

End of Document