Title 194 W. Va. C.S.R.

title-194Title 194 W. Va. C.S.R.Regulation

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Massage Therapy Licensure Board Massage Therapy Licensure Board

Series 01 General Provisions

W. Va. Code R. § 194-1-1 General

1.1. Scope. -- This rule establishes procedures for conducting the business of the Board, as well as establishing licensing procedures.

1.2. Authority. -- W. Va. Code §30-37-6.

1.3. Filing Date. -- May 15, 2025.

1.4. Effective Date. -- May 15, 2025.

1.5. Sunset Provision. -- This rule shall terminate and have no further force or effect on August 1, 2035.

W. Va. Code R. § 194-1-2 Massage Therapy Board Fund; Expenses; Disposition of Funds

2.1. All fees shall be made payable to the West Virginia Massage Therapy Licensure Board and deposited by the Board in its account established in the state treasurer’s office.

2.2. Members of the Board shall receive the following compensation for their administration of the Board:

2.2.a. The members of the Board shall receive the same compensation and expense reimbursement for their services as is paid to members of the Legislature for interim duties as recommended by the citizens legislative compensation commission and authorized by law for each day or portion of a day that the Board member engaged in the discharge of official duties.

2.2.b. The member may be reimbursed for his or her actual and necessary expenses incurred for each day or portion of a day that the Board member is engaged in the discharge of official duties in a manner consistent with the guidelines of the travel management office of the department of administration.

W. Va. Code R. § 194-1-3 Requirements for Licensure

3.1. Application for licensure.

3.1.a. The Board shall furnish any person requesting an application for a license or temporary permit the necessary forms, and any other information or questionnaires required by the Board;

3.1.b. The application forms shall be designed to require the information necessary to satisfy the Board that all requirements pertaining to the W. Va. Code are being fulfilled; and shall require the applicant to provide the following:

3.1.b.1. All relevant personal information as determined by the Board;

3.1.b.2. An official transcript proving graduation from a program of massage therapy education approved by a state agency in another state, the District of Columbia or a United States territory which approves educational programs, and which meets qualifications for the National Certification Exam administered through the National Certification Board for Therapeutic Massage and Bodywork prior to February 1, 2015 or the West Virginia Council for Community and Technical Colleges, West Virginia Department of Education or any Board approved massage education both requiring a diploma from an accredited high school or the equivalent and completion of at least six hundred twenty-five (625) hours of supervised academic training;

3.1.b.3. Proof of the successful completion of the National Certification Board for Therapeutic Massage and Bodywork (NCBTMB) exam prior to February 1, 2015; and

3.1.b.4. All applicable fees as set forth in 194CSR4;

3.1.c. A license expires two (2) years from the end of the month it was issued.

3.2. Renewal of License. Licensees applying for renewal shall complete the application form provided by the Board with the following:

3.2.a. Personal information;

3.2.b. The fee required by the Board 194CSR4; and

3.2.c. Documentation of completion of twenty four (24) continuing education units within the preceding two (2) year licensing period that adhere to the NCBTMB, Federation of State Massage Therapy Boards (FSMTB) or Board approved guidelines.

3.3. Lapsed Licenses.

3.3.a. If any licensee fails for a period of thirty days after his or her license expires to apply to the Board for a renewal of his or her license, the Board shall send notification of the required renewal to the last known address of the licensee. If the licensee fails to apply to the Board for a renewal of his or her license within thirty days after receipt of the notification, the Board shall remove his or her name from the register of licensees and the license shall be considered lapsed.

3.3.b. In order for any licensee whose name has been removed from the register of the Board to again become licensed, the licensee shall appear personally before the Board, or an authorized committee of the Board, to show cause for permitting the license to lapse. If the person submits to the Board satisfactory reasons for allowing the license to lapse and satisfies the Board as to his or her qualifications to practice the profession, the Board shall reinstate that person upon payment of a reinstatement fee plus the renewal fee.

3.3.c. In lapsed license cases the Board determines necessary, the Board shall require the licensee to comply with all renewal license requirements, and may require a licensee whose license has lapsed to comply with the initial license requirements set forth by W. Va. Code §30-37-1, et seq., and by rule.

3.4. The Board may issue a reciprocal license to applicants otherwise qualified for licensure in West Virginia.

3.5. A massage therapist licensed outside of West Virginia applying for reciprocal West Virginia licensure, shall complete the application forms provided by the Board with the following:

3.5.a. Personal information;

3.5.b. A photocopy of his or her current or most recent license;

3.5.c. Any information regarding any pending or prior investigations or disciplinary actions pertaining to his or her licensure. This shall include statements from any and all states in which the applicant is currently or formerly licensed;

3.5.d. Documentation of the applicant’s continuing education units (CEU’S) completed in the last two (2) years; and

3.5.e. For an applicant who is Nationally Certified, a photocopy of his or her current National Certification Board for Therapeutic Massage and Bodywork certificate.

3.6. Massage therapists applying for a renewal or reciprocal license shall meet the current standards for continuing education hours required by the Board and offered by approved providers for the National Certification Board for Therapeutic Massage and Bodywork (NCBTMB), Federation of State Massage Therapy Boards (FSMTB), American Massage Therapy Association (AMTA), Associated Bodywork and Massage Professionals, (ABMP)and any other Board approved provider. Failure to comply with the current standards for continuing education as required by the Board is grounds for revocation or suspension under the provisions of this rule.

3.7. An applicant who applies for a license in West Virginia and who is not licensed in any other state, the District of Columbia or a United States territory or any other country or province shall meet the requirements as set forth in this rule.

3.8. All licensees and those applicants who apply for a license in West Virginia are required to keep or have a record of continuing education units including the title, (workshop, etc.), the date, place, number of hours of instruction, instructor’s name, sponsor of the class, and the person to call to verify attendance (sponsoring group or instructor). The Board may audit a certain number of licensees every two (2) years, and may ask applicants to provide the information listed in this subsection.

3.9. Applicants for licensure who have completed a program of massage therapy two years or more prior to making application for licensure shall additionally be required to complete and provide proof of completion of all continuing educational requirements as if the applicant had been licensed by the Board during the time prior to the submission of the applicant’s application for licensure.

3.10. The Board may audit any applicant to verify credentials or request information.

3.11. Each licensee shall publicly display his or her current valid license at his or her primary work site. A duplicate license, issued by the Board, shall be displayed at his or her secondary place of employment.

3.12. The Board may at any time inspect the place of employment of the licensee.

3.13. If an applicant fails to complete all forms and to provide all information as required by an application for licensure or renewal of licensure, the Board may reject and return the application to the applicant.

3.14. The Board shall grant a license to any applicant who meets all the requirements set forth in this rule.

3.14.a. The Board may suspend, revoke or impose probationary conditions on a licensee who fails to comply with the requirements of this rule.

3.14.b. A license shall include at least the following information: the licensee’s full name; the date of issuance; the seal of West Virginia; the license number; and the signature of the chairperson or the secretary of the Board.

W. Va. Code R. § 194-1-4 Standards Relating to the Practice of Massage Therapy; Professional Misconduct

4.1. The licensee shall know the statutes and rules governing massage therapy and function within the legal boundaries of the massage therapy practice. The Board may suspend, revoke, or otherwise discipline a licensee who violates any provision of W. Va. Code §30-37-1, et seq., and this rule, or who is guilty of professional misconduct. A licensee shall:

4.1.a. Maintain documentation of compliance with all applicable state or local government rules;

4.1.b. Conduct massage therapy only in rooms which are adequately lighted and ventilated, and which are kept clean. Restroom facilities with a toilet, sink with hot and cold running water, soap, and clean towels and adequate toilet tissue must be available;

4.1.c. Maintain a reasonable effort for sanitation for temporary locations such as athletic events or public service fund raisers in temporary venues;

4.1.d. Maintain all equipment and supplies used to perform massage services in a safe and sanitary condition. Lotions, creams, and oils shall be kept free of possible bacterial contamination;

4.1.e. Wash his or her hands in hot, soapy water or other antibacterial substance before and after each massage therapy treatment;

4.1.f. Launder, before reuse, all materials furnished for the personal use of the massage therapy client, such as towels, linens and any draping materials;

4.1.g. Before proceeding with the massage of a client, explain expected draping techniques and provide the client a clean drape or drapes for the purpose of covering the body in accordance with generally-accepted standards of practice;

4.1.h. Before proceeding with breast massage therapy, the client shall provide a written medical directive to the massage therapist in advance of performing breast massage therapy. The medical directive shall be included in the client file. The massage therapist shall also obtain informed, written consent in prior to performing breast massage. A breast massage shall only be performed as indicated in the medical directive prescribed by a medical doctor, doctor of osteopathy, physician assistant, or an advanced practice registered nurse and also indicated in a plan of care. Failure to comply with this subdivision constitutes grounds for revocation of license;

4.1.i. Obtain instruction and supervision as necessary when implementing massage therapy techniques or practices;

4.1.j. Report any unsafe massage therapy practice and/or violation of law by other licensees to the Board and recognized legal authorities;

4.1.k. Conduct practice without discrimination on the basis of age, race, religion, gender, sexual preference, socio-economic status, national origin, handicap, or disease;

4.1.l. Respect the dignity and rights of clients regardless of social or economic status, personal attributes, or nature of the client's health problems;

4.1.m. Respect the client's right to privacy by protecting confidential information unless obligated by law to disclose the information;

4.1.n. Obtain voluntary and informed consent from the client prior to initiating the massage therapy session;

4.1.o. Be knowledgeable of his or her competent scope of practice and practice only within these limitations;

4.1.p. Refer to other professionals when in the best interest of the client and/or practitioner;

4.1.q. Maintain accurate and truthful records;

4.1.r. Maintain client files for a minimum period of four years, and store and dispose of client files in a secure manner;

4.1.s. Refrain from engaging in any sexual activity with a client;

4.1.t. Refrain from massaging, touching or otherwise exposing the genitalia of the client, including a licensee may not perform pelvic floor therapy or any touching of the genitalia of the client, and such treatments are not within the scope of practice of the profession; and

4.1.u. Refrain from practicing massage therapy while under the influence of alcohol, drugs, or any illegal substances.

4.2. A licensee shall acknowledge and sign an agreement to uphold the Code of Ethics adopted by the National Certification Board for Therapeutic Massage and Bodywork and comply with the Standards of Practice promulgated by the National Certification Board for Therapeutic Massage and Bodywork.

4.3. Conduct including, but not limited to, the following constitutes professional misconduct where the licensee:

4.3.a. Failed to adhere to common and current standards for professional massage therapy practice, including but not limited to standards established by a national massage therapy organization, or the Board;

4.3.b. Knowingly committed an act which could adversely affect the physical or psychological welfare of a client;

4.3.c. Practiced or offered to practice beyond the scope permitted by law or accepted and performed professional responsibilities that the licensee knows or has reason to know that he or she is not licensed, qualified, or competent to perform;

4.3.d. Impersonated another licensed practitioner;

4.3.e. Permitted another person to use the licensee's license for any purpose;

4.3.f. Permitted, aided, or abetted an unlicensed, uncertified, or unregistered person to perform activities requiring a license, certificate, or registration;

4.3.g. Delegated professional responsibilities to a person when the licensee delegating the responsibilities knows or has reason to know that person is not qualified by training, experience or licensure to perform them;

4.3.h. Practiced massage therapy while his or her license is suspended, lapsed, or inactive;

4.3.i. Failed to comply with terms and conditions imposed by the Board based upon previous disciplinary action of the Board;

4.3.j. Practiced massage therapy while his or her ability to safely and effectively practice is compromised by alcohol or drugs;

4.3.k. Is addicted to a controlled substance, or is a chronic or persistent alcoholic;

4.3.l. Engaged in dishonorable, unethical or unprofessional conduct of a character likely to deceive, defraud or harm the public or any member of the public; thus, not exercising good professional character;

4.3.m. Practiced massage therapy while his or her ability to safely and effectively practice was compromised by physical or mental disability;

4.3.n. Provided false or incorrect information to an employer or potential employer regarding the status of a license, or failed to inform an employer or potential employer of a change in the status of a license;

4.3.o. Knowingly falsified an application for employment;

4.3.p. Knowingly provided false information regarding completion of educational programs;

4.3.q. Falsified client records;

4.3.r. Knowingly made or filed a false report;

4.3.s. Knowingly or negligently failed to file a report or record required by state or federal law;

4.3.t. Willfully impeded or obstructed the filing of a report or record required by state or federal law;

4.3.u. Induced another person to file a false report or obstructed the filing of a report required by state or federal law;

4.3.v. Failed to report to the Board within thirty (30) days, knowledge of a violation by a licensee of W. Va. Code §30-37-1 et seq., this rule, any other applicable state law or rule or any applicable federal law or regulation;

4.3.w. Failed to report through proper channels a violation of any applicable state law or rule, any applicable federal law or regulation or the incompetent, unethical, illegal, or impaired practice of another person who provided health care;

4.3.x. Impeded or obstructed an investigation by the Board by failing to comply or respond to requests for action or information, whether the failure was known or negligent;

4.3.y. Violated any provision of W. Va. Code §30-37-1 et seq., or rules governing the practice of massage therapy, or order of the Board, or failed to comply with a subpoena or subpoena duces tecum issued by the Board;

4.3.z. Failed to register or notify the Board of any changes of name or mailing address;

4.3.aa. Failed to accept certified mail from the Board, when mailed to the licensee’s last address on record in the Board’s office;

4.3.bb. Provided false information on any application, or any other document submitted to the Board for the purpose of licensure;

4.3.cc. Misappropriated medications, supplies, or personal items of a client or employer;

4.3.dd. Self-administered or otherwise took into his or her body any prescription drug in any way not in accordance with a legal, valid prescription or used any illicit drug;

4.3.ee. Physically or verbally abused, or failed to provide adequate protection or safety for an incapacitated individual in the context of a therapist/client relationship;

4.3.ff. Used the therapist-patient/client relationship to exploit a patient or client;

4.3.gg. Engaged a patient or client in sexual activity or became romantically involved with a patient or client while still responsible for the care of that patient or client;

4.3.hh. Failed to maintain appropriate professional boundaries in the therapist-patient/client relationship;

4.3.ii. Failed to report that his or her license to practice massage therapy in any other state, territory, jurisdiction or foreign nation was revoked, suspended, restricted or limited, or otherwise acted against, that he or she was subjected to any other disciplinary action by the licensing authority, or that he or she was denied licensure in any other state, territory, jurisdiction, or foreign nation; or

4.3.jj. Was found guilty for improper professional practice or professional misconduct by a duly authorized professional disciplinary agency or licensing or certifying body or Board in this or another state or territory, where the conduct upon which the finding was based would, if committed in this state, constitute professional misconduct under the laws of this state, may serve as a basis for disciplinary action by this Board.

W. Va. Code R. § 194-1-5 Relating to the Practice of Telehealth

5.1. The Board will not issue a license for the practice of telehealth for massage therapy due to being an in person and hands on profession.

194CSR1

194CSR1

Series 02 Hearing Procedures

W. Va. Code R. § 194-2-2 Definitions

The following words and phrases as used in these rules shall have the following meanings.

2.1. "Board" means the West Virginia Massage Therapy Licensure Board.

2.2. "Demanding party" means an individual who has been denied a license to practice massage therapy by the Board and who demands that the Board hold a hearing on the denial.

2.3. "Charged party" means an individual who holds a license to practice massage therapy issued by the Board and who has been charged by the board as described in subsections 3.3 and 3.4 of section 3 of these rules.

2.4. "Licensee" means an individual who holds a license to practice massage therapy issued by the Board.

2.5. "Chair/Chairperson" means chair/chairperson of the Board.

W. Va. Code R. § 194-2-3 Hearing Procedures

3.1. Any person denied a license by the Board who believes the denial was in violation of W. Va. Code '30-1-1 et seq and/or 30-37-1 et seq. shall be entitled to a hearing on the denial upon presenting a written demand for hearing to the Board.

3.2. When a written demand for hearing is received by the Board, the chair/chairperson of the Board or the chair/chairperson's authorized designee shall schedule a hearing within forty-five (45) days of receipt of the demand, unless postponed to a later date by mutual agreement of the demanding party and the chair/chairperson or chair/chairperson's designee.

3.3. The Board may institute charges against any licensee when cause exists for reasonable belief that the licensee to be charged has engaged in conduct or is in a condition that his or her massage therapy license should be suspended, revoked or be made subject to probationary conditions pursuant to grounds set forth in W. Va. Code '30-37-1 et seq. or the Board's legislative rules. Charges may be based upon a verified written complaint filed with the Board and information gathered pursuant to the Board's investigation of the complaint. Charges may also be based on information gained solely through investigation by the Board.

3.4. Charges initiated against a licensee as described in subsection 3.3 of this section shall be set forth in a Complaint and Notice of Hearing issued in the name of the Board as the agency of the state regulating the practice of massage therapy. The complaint and notice of hearing shall designate the Board as "Complainant", and designate the licensee involved as the "Respondent"; shall state the substance of each offense charged with sufficient particularity to reasonably apprise the Respondent of the nature, time and place of the conduct or condition which is the subject of the complaint; and, shall state the time, date and place of hearing.

3.5. Upon receipt of a demand for a hearing described in subsection 3.1 and 3.2 of this section, the Chair/Chairperson of the Board or the chair/chairperson's designee shall provide the demanding party with a Complaint and Notice Of Hearing issued in the name of the Board as the agency of the state regulating the practice of massage therapy. Such Complaint and Notice of Hearing shall designate the demanding party as the "Complainant", and shall designate the Board as the "Respondent"; shall set out the substance of each and every reason that the Board has denied the demanding party a license with sufficient particularity to reasonably apprise the demanding party of the nature, time and place of the conduct or condition at issue therein; and, shall state the date, time and place for the hearing.

3.6. The Board may amend the charges set forth in a Complaint and Notice Of Hearing as it deems proper.

A complaint and Notice Of Hearing, original or amended shall be served on the demanding or charged party at least thirty (30) days prior to the date of hearing.

3.8. Upon written motion received by the Board no later than twenty (20) days prior to the date of hearing, a more definite statement of the matters charged or the reasons stated for denial of licensure shall be provided to the demanding or charged party or his or her counsel, at least fifteen (15) days prior to the hearing date.

3.9. Hearings shall be conducted as follows:

a. Each party to a hearing shall be entitled to be represented by an attorney-at-law, duly qualified to practice law in the State of West Virginia.

b. The Board may be represented by counsel from the West Virginia Attorney General's office.

c. The rules of evidence as applied in civil cases in the circuit courts of this State shall be followed, but shall be liberally construed to achieve justice.

d. The rules of privilege recognized by State law shall be followed.

e. Objections to offers of evidence shall be noted in the record. Any party to the hearing may vouch the record as to any excluded testimony or other evidence.

f. Any party to a hearing may present witnesses to testify; may be heard in person, by counsel, or both; may present such other evidence as deemed appropriate by the Board or its hearing examiner; and, may cross-examine witnesses.

g. The hearing shall be held at a time and place designated by the Board, but no hearing shall be conducted unless and until at least thirty (30) days written notice is provided. Written notice must be served upon the charged or demanding party and/or his or her attorney in person, or if he or she cannot be found, by delivering such notice at his or her usual place of abode, and giving information of its purport, to his or her spouse or to any member of his or her family found there who is above the age of 16 years; or if service on the party or on a family member can not be made, by leaving such notice posted at the front door of such place of abode; or if the charged or demanding party does not reside in the state, notice may be served by the publication thereof once a week for three successive weeks in a newspaper published in this State; or such notice may be served by registered or certified mail.

h. The hearing shall be open to the general public.

i. Members of the Board and its officers, agents and employees shall be competent to testify at the hearing as to material and relevant matters: Provided, that no member of the Board who testifies at such hearing shall thereafter participate in the deliberations or decisions of the Board with respect to the case in which he or she so testified.

j. The hearing may be conducted by one or more Board members or by a hearing examiner appointed by the Board.

k. A record of the hearing, including all pleadings, rulings, stipulations, exhibits, documentary evidence, evidentiary depositions and the stenographic report of the hearing, shall be made and a transcript thereof maintained in the Board's files. Upon request, a copy of the transcript shall be furnished to any party at his or her expense.

l. In a hearing initiated by the Board as a result of charges against a licensee pursuant to subsections 3.3 and 3.4 of this section, the Board shall present its evidence and/or testimony first, and shall have the burden of proof.

m. Where a hearing is held upon demand under provisions of subsections 3.1, 3.2, and 3.5 of this section, the demanding party shall present evidence first, and shall have the burden of proof.

n. The Board may call witnesses to testify in support of its decision to deny licensure or in support of the charges instituted against a licensee; may present such other evidence to support its position; and, may cross-examine witnesses called by the demanding party or charged party.

o. All parties shall have the right to present opening and closing arguments, the length of which may be set by the Board or hearing examiner, except that each party shall be given equal time for closing arguments.

p. Hearings held as a result of charges instituted by the Board against a licensee may be continued to a later date or a different place by the Board or its designee by appropriate notice to all parties.

q. Motions for continuance of a hearing may be granted upon a showing of good cause. Motions for continuance must be in writing and received in the office of the Board no later than seven days prior to the hearing date. In determining whether good cause exists consideration will be given to the ability of the party requesting the continuance to proceed effectively without the requested continuance. A motion for continuance filed less than seven (7) days from the date of hearing shall be denied unless the reason for the motion could not by due diligence have been ascertained earlier. Motions for continuance filed prior to the date of hearing may be ruled on by the chair/chairperson of the Board or the chair/chairperson's designee, or an appointed hearing examiner. The Board member(s) or presiding hearing examiner shall rule on all other motions for continuance.

r. All motions in a case set for hearing, except motions for continuance and those made during the hearing, shall be in writing and shall be received in the office of the Board at least ten (10) days before the hearing. Prehearing motions shall be heard at a prehearing conference set by the Board or hearing examiner, or, at the hearing prior to commencement of testimony. The Board member(s) or hearing examiner presiding at the hearing shall rule after hearing a motion and the response from the non-moving party.

W. Va. Code R. § 194-2-4 Transcription of Testimony and Evidence

4.1. All testimony, evidence, arguments and rulings on the admissibility of testimony and evidence shall be recorded by stenographic notes or by mechanical means.

4.2. All recorded materials shall be transcribed. The Board shall have the responsibility to make arrangements for the transcription of the recorded testimony and evidence.

4.3. Upon motion of the Board or any party assigning error or omission in any part of a transcript, the Board or its appointed hearing examiner shall settle all differences arising as to whether the transcript truly discloses what occurred at the hearing, and shall direct that the transcript be corrected and/or revised as appropriate so as to make it conform to the hearing.

4.4. A transcript of the hearing shall be provided to all members of the Board for review at least ten (ten) days before the Board's vote is taken on its decision in any licensure or licensure disciplinary matter.

W. Va. Code R. § 194-2-5 Submission of Proposed Findings of Fact and Conclusions of Law

Any party may submit proposed findings of fact and conclusions of law at a time and in a manner designated by the Board or its appointed hearing examiner.

W. Va. Code R. § 194-2-6 Hearing Examiner

6.1. The Board may appoint a hearing examiner who shall be empowered to subpoena witnesses and documents, administer oaths and affirmations, examine witnesses under oath, rule on evidentiary matters, hold conferences for the settlement or simplification of issues by consent of the parties, cause to be prepared a record of the hearing so that the Board is able to discharge its functions, and otherwise conduct hearings.

6.2. Hearing examiners appointed by the Board are not authorized or empowered to grant, suspend, revoke or annul any license.

6.3. The hearing examiner shall prepare recommended findings of fact and conclusions of law for submission to the Board. The Board may adopt, modify or reject the hearing examiner's findings of fact and conclusions of law.

W. Va. Code R. § 194-2-7 Conferences: Informal Disposition of Cases

7.1. At any time prior to the beginning of the hearing or thereafter, the Board, its designee or its appointed hearing examiner may hold conferences for the following purposes:

a. To dispose of procedural requests, prehearing motions or similar matters;

b. To narrow or settle issues by consent of the parties; or c. To provide for the informal disposition of cases by stipulation or agreement.

7.2. The Board or its appointed hearing examiner may cause such conferences to be held on its own motion or by the request of a party.

7.3. The Board may also initiate or consider stipulation or agreement proposals with regard to the informal disposition of cases and may enter into stipulations and/or agreements without conference.

W. Va. Code R. § 194-2-8 Depositions

Evidentiary depositions may be taken and read or otherwise included into evidence as in civil actions in the circuit courts of this State.

W. Va. Code R. § 194-2-9 Subpoena

Subpoenas to compel the attendance of witnesses and subpoenas duces tecum to compel the production of documents may be issued by the Board, the Board's designee, or by the hearing examiner appointed by the Board. Subpoenas shall be issued pursuant to W. Va. Code '29A-5-1(b).

9.2. Written requests by a party for the issuance of subpoenas or subpoenas duces tecum must be received by the Board no later than ten (10) days before a scheduled hearing. Any party requesting the issuance of subpoenas or subpoenas duces tecum is responsible for having them properly served in accordance with W. Va. Code '29A-5-1(b).

W. Va. Code R. § 194-2-10 Orders

10.1. Any final order entered by the Board following a hearing conducted by these rules shall be entered within 45 days following the submission to the Board of all documents and materials necessary for the proper disposition of the case, including transcripts, and shall contain findings of fact and conclusions of law, pursuant to W. Va. Code ''29A-5-3 and 30-1-8(d). .

10.2. The findings of fact and conclusions of law must be approved by a majority of the Board either by a poll or vote as a regular meeting, before a final order is entered. A copy of the final order approved by a majority of the Board shall be served upon the demanding or charged party and/or his attorney of record, if any, within five (5) days after entry by the Board by personal service or by registered or certified mail.

W. Va. Code R. § 194-2-11 Appeal

An appeal from any final order entered in accordance with these rules shall comply with W. Va. Code '30-1-9.

W. Va. Code R. § 194-2-12 Severability

If any provision of this rule, or the application thereof, to any person or circumstance is determined to be invalid, the invalidity shall not affect the provisions or applications of this rule which can be given effect without the invalid provision or application, and to this end, the provisions of this rule are severable.

194CSR2

Series 03 Disciplinary And Complaint Procedures For Massage Therapists

W. Va. Code R. § 194-3-1 General

1.1. Scope. -- These procedural rules establish procedures for the investigation and resolution of complaints against massage therapists.

1.2. Authority. -- W. Va. Code ''30-1-1 et seq. and 30-37-6 which permits the Board to propose rules and fees for licensure, renewal of licensure continuing education requirements standards of practice and all related matters.

1.3. Filing Date. -- December 15, 2000.

1.4. Effective Date. -- January 15, 2001.

W. Va. Code R. § 194-3-2 Application

This rule applies to all licensed massage therapists.

W. Va. Code R. § 194-3-3 Definitions

The following words and phrases as used in this rule have the following meanings, unless the context otherwise requires: 3.1 ALicensee@ means an individual who holds a license to practice massage therapy issued by this Board

3.2. ABoard@ means the West Virginia MassageTherapy Licensure Board.

3.3. ALicense@ means a license by the Board pursuant to W. Va. Code '30-37-1 .

W. Va. Code R. § 194-3-4 Causes for Denial, Probation, Limitation, Discipline, Suspension or Revocation of Licenses of Massage Therapists

The Board may deny an application for license, place a licensee on probation, limit or restrict a license, suspend a license or revoke any license issued by the Board, upon satisfactory proof that a licensee has been convicted of a felony or is, in his or her professional capacity, engaged in conduct, or committed other acts, practices or acts constituting professional negligence or a willful departure from accepted standards of professional conduct in violation of W. Va. Code '30-37-8 or the rules of the Board.

W. Va. Code R. § 194-3-5 Disposition of Complaints

5.1. Any person, firm, corporation, member of the Board, or public officer may make a complaint to the Board in writing or in person which charges a massage therapist or applicant with a violation of W. Va. Code '30-37-8 or rules of the Board. The Board may accept an anonymous complaint if the information provide adequate to begin an investigation. The Board may provide a form for that purpose, but a complaint may be filed in any written form. In addition to describing the alleged violation which prompted the complaint, the complaint should contain the following:

5.1.1. The name and address of the massage therapist against whom the complaint is lodged;

5.1.2. The date of care;

5.1.3. The name of any person who may treated the patient after the alleged incident; and,

5.1.4. The name of any health care institution in which the patient was an inpatient or outpatient after or during the alleged incident.

5.2. A complaint against a massage therapist shall allege that such person has been convicted of a felony or is, in his or her professional capacity, engaging in conduct, practices or acts constituting professional negligence or a willful departure from accepted standards of professional conduct in violation of W. Va. Code '30-37-8 or the rules of the Board.

5.3. Complainants are immune from liability for the allegations contained in their complaints filed with the Board unless the complaint is filed in bad faith or for a malicious purpose.

5.4. The Board shall maintain a complaint log which records the receipt of each complaint, its nature and its disposition.

5.5. The Board shall maintain a separate file on each complaint received, and each file shall have a number assigned to it.

5.6. Upon receipt of a complaint, the Board shall issue one of the following acknowledgments to the complainant:

5.6.1. That the matter will be reviewed by the Board;

5.6.2. That the complaint is outside the jurisdiction of the Board, with suggestions as to how the complainant might best obtain a resolution of his or her problem; or,

5.6.3. That more information will be required in order to adequately review the individual complaint.

5.7. The Board shall send a copy of the complaint, including any supporting documentation, by certified mail to the licensee or applicant in question for his or her written comment, and he or she shall submit a written response to the Board within thirty (30) days of the date of such correspondence, or waive the right to do so.

5.8. Requests for comment on complaints sent to licensees or applicants shall be considered properly served when sent to their last known address. It is the responsibility of the licensee or applicants to keep the Board informed of his or her current address.

5.9. Upon receipt of a licensee=s or applicant=s comments in response to a complaint, the Board shall promptly send a copy of the same, including any supporting documentation, to the complainant.

5.10. After receipt and review of a complaint, unless the complaint is determined to fall within the provisions of subdivision 5.6.2 of this rule, the Board shall cause to be conducted any reasonable inquiry or investigation it considers necessary to determine the truth and the validity of the allegations set forth in the complaint. The review of complaints and any view or investigation thereof may, at the discretion of the Board, be assigned to a committee of the Board.

5.11. At any point in its investigation of a complaint the Board may, at its discretion, assign the matter to an ethics investigator or investigating member or commitee for review and investigation.

5.12. Upon receipt of a complaint the Board may designate an Ethics investigator or investigating member or committee for the Board who shall act as a representative, within sixty (60) days, review and investigate the same and provide the Board with a report. The report shall contain a statement of the allegations, a statement of facts, and an analysis of the complaint, the records reviewed and a statement of the Executive Secretary or Counsel of the Board.

5.13. To facilitate the disposition of a complaint, the Board or the committee may request any person to attend an informal conference, or to appear at a regular meeting of the Board, at any time prior to the Board entering any order with respect to the complaint. The Board or the committee shall give notice of the conference, which notice shall include a statement of issues to be informally discussed. Statements made at a conference may not be introduced at any subsequent hearing on the merits without the consent of all parties to the hearing. No prejudice shall attach for failure to attend a conference pursuant to a request.

5.14. The Board, its president, the investigating committee or chairperson may issue subpoenas and subpoenas duces tecum to complete the Board=s investigation and to determine the truth or validity of complaints. The Councel of the Board may request the Board or its president to issue a subpoena or subpoena duces tecum . Any such request shall be accompanied by a brief statement specifying the necessity for the same.

5.15. At any point in the course of an investigation or inquiry into a complaint, the Board may determine that there is not and will not be sufficient evidence to warrant further proceedings, or that the complaint fails to allege misconduct for which a massage therapist, may be sanctioned by the Board: Provided, that in the event the review and investigation of a complaint is assigned to the committee or Executive Secretary or Council of the Board shall make their respective findings and recommendations to the Board prior to the Board dismissing the complaint. Any closure or dismissal of a complaint shall be in writing and all parties shall be informed thereof.

W. Va. Code R. § 194-3-6 Contested Case Hearings

6.1. The Board may refuse to renew a license or suspend a license if it determines there is probable cause to believe that massage therapist conduct, practices or acts constitute an immediate danger to the public.

W. Va. Code R. § 194-3-7 Appeals

7.1. Any applicant who has had his or her application for a license denied by order of the Board may appeal the order within thirty (30) days of that action in accordance with the contested case hearing procedures set forth in W. Va. Code '29A-6-1 et seq. and the rules of the Board: Provided, that the appeal shall not include cases in which the Board denies a license or certificate after an examination to test the knowledge or the ability of the applicant where the controversy concerns whether the examination was fair or whether the applicant passed the examination.

194CSR3

Series 04 Schedule of Fees

W. Va. Code R. § 194-4-1 General

1.1. Scope. -- This rule establishes the schedule of fees for the Massage Therapy Licensure Board.

1.2. Authority. -- W. Va. Code §30-37-6 and W. Va. Code §30-37-13.

1.3. Filing Date. -- May 1, 2024

1.4. Effective Date. -- May 1, 2024

1.5. Sunset Provision – This rule shall terminate and have no further force or effect on August 1, 2034.

W. Va. Code R. § 194-4-2 Licensure and Administrative Fees

2.1. Each applicant for licensure is responsible for paying the appropriate fees specified in this rule.

2.2. The fees authorized to be established by the Board and necessary to the operation of the Board are as follows:

2.3. Application fee -- ($50.00) -- a non-refundable fee to be paid by all applicants for a massage therapy license including those seeking a reciprocal license or to re-apply for a license.

2.4. Two (2) year license fee -- ($300.00) -- a fee to be paid at the time of application for initial or reciprocal license. This fee does not include the fifty dollars ($50.00) application fee. This fee is non-refundable after issuance of a license.

2.5. Two (2) year licensure renewal fee -- ($200.00) -- a fee to be paid prior to the issuance of the license. This fee must be received by June 30 of the renewal year or by the end of the month before the license expires. This fee is non- refundable after issuance of license.

2.6. Late fee -- ($50.00) -- a non-refundable fee to be paid when a licensee fails to submit application and fees on or after July 1 or the date the license expires. This is in addition to the other required fees.

2.7. Duplicate or replacement license fee -- ($25.00) -- a non-refundable fee to be paid when a licensee requests a replacement for a lost or destroyed license, renewal or duplicate license or a license request due to a name change.

2.8. Certified statement fee -- ($30.00) -- a fee to be paid at the time of request the Board verify that a licensee is licensed in West Virginia.

2.9. Failure to report change of address fee in writing fee -- ($25.00) -- a fee that is to be paid by the applicant when he or she has failed to notify the Board in writing within thirty (30) days of changing his or her address.

2.10. Re-application fee -- ($300.00) -- a fee to be paid when re-applying for licensure after the license lapsed sixty days after the expiration date of the license.

2.11. Failure to report name change in writing fee -- ($25.00) -- a fee that is to be paid by the applicant when he or she has failed to notify the Board in writing within thirty (30) days of changing their name.

2.12. Roster fee -- ($100.00) -- a fee that is to be paid by at the time of the request for a copy of the roster of current licensees.

2.13. Photocopy per page fee -- a ($.50) per page photocopying fee shall be paid at the time information is requested. §194-4 3. Establishment License Fee.

3.1. Application fee for an establishment license -- ($100.00) – a non-refundable fee to be paid at the time of application for the initial two (2) year establishment license.

3.2. Two (2) year establishment license renewal fee -- ($100.00) – a fee to be paid prior to the issuance of the license. This fee must be received by the end of the month of the renewal year before the license expires. This fee is non-refundable after issuance of the license.

W. Va. Code R. § 194-4-4 Payment of Fees

4.1. All fees and any money to be paid to the board shall be on a personal bank check, a certified check, or by money order. The board may not accept cash payments.

194CSR4

194CSR4

Series 05 Application for Waiver of Initial Licensing Fees for Certain Individuals

W. Va. Code R. § 194-5-1 General

1.1. Scope. -- This rule establishes procedures for waiving the initial licensing fee for low income individuals and military personnel and their spouses.

1.2. Authority. -- W. Va. Code §30-1-23, and W. Va. Code §30-37-6.

1.3. Filing Date. -- April 16, 2020

1.4. Effective Date. -- April 30, 2020

1.5. Sunset Provision. -- This rule shall terminate and have no further force or effect upon the expiration of April 30, 2030.

W. Va. Code R. § 194-5-2 Definitions

2.1. Board means the West Virginia Massage Therapy Licensure Board.

2.2. MTLB-LIW means the Massage Therapy Licensure Board waiver form to request a waiver of the licensing fee for low income individuals as authorized by W. Va. Code subsection §30-1-23.

2.3. MTLB-MFW means the Massage Therapy Licensure Board waiver form to request a waiver of the initial licensing fee for military service members and their spouses as described in W. Va. Code subsection §30-1-23.

2.4. “Initial” means obtaining a license in West Virginia for the practice of massage therapy for the first time.

2.5. “Local labor market” means every county in West Virginia, and any county outside of West Virginia if any portion of that county is within fifty miles of the border of West Virginia, pursuant to W.Va. Code §21-1C-2.

2.6. “Low-income individual” means an individual in the local labor market as defined in W. Va. Code §21-1C-2, whose household adjusted gross income is below 130 percent of the federal poverty line. This term also includes any person enrolled in a state or federal public assistance program including, but not limited to, the Temporary Assistance for Needy Families Program, Medicaid, or the Supplemental Nutrition Assistance Program.

2.7. “Military families” means any person who serves as an active member of the armed forces of the United States, the National Guard, or a reserve component as described in 38 U. S. C. §101, honorably discharged veterans of those forces, and their spouses. This term also includes surviving spouses of deceased service members who have not remarried.

W. Va. Code R. § 194-5-3 Application for Waiver of Initial Licensure Fees

3.1. The Board may issue a license to an applicant who meets the requirements of W. Va. Code §30-37-1 et seq. and the rules promulgated by the Board, and the Board shall waive the initial licensure fee if the applicant qualifies as a “low-income individual” or as a member of one or more “military families” as defined in this rule.

3.2. Low-income individuals, as defined in this rule, may seek a low income waiver (LIW) of the initial licensure fee for licensure as a professional massage therapist by submitting with their complete application a low-income waiver of initial licensure fee form, provided by the Board, and all required verification documents as prescribed by the Board. The Board shall review the application and issue a decision within 30 days of receipt of the complete application.

3.3. Military families, as defined in this rule, may seek a military family waiver (MFW) of the initial licensure fee for licensure as a professional massage therapist by submitting with their complete application a military service verification form, provided by the Board, and all required verification documents as prescribed by the Board. The Board shall review the application and issue a decision within 30 days of receipt of the complete application.

W. Va. Code R. § 194-5-4 Required Documentation for Waiver of Initial Licensure Fees

4.1. Individuals requesting a waiver of initial licensing fees for low income or military service personnel and their spouses, an applicant shall submit to the Board with the application for initial licensure waiver MTLB-LIW or MTLB-MFW form and the appropriate documentation as specified in this section.

4.2. To establish low income eligibility for an initial licensing fee waiver, an applicant shall submit to the Board evidence that the adjusted gross income of the household of the applicant is below 130% of the federal poverty level by submitting documentation of eligibility for:

4.2.1. Temporary Assistance for Needy Families Program;

4.2.2. Medicaid;

4.2.3. Supplemental Nutrition Assistance Program; or

4.2.4. A Federal Tax Return. 4.3 To establish military family eligibility for the initial licensing fee waiver, an applicant shall submit to the Board proof of qualifying military service and proof of eligibility as a qualifying spouse or surviving spouse, as follows:

4.3.1. A service members DD-214 form;

4.3.2. A service members NGB-22 form;

4.3.3. A service members DD-1300 form; or

4.3.4. A copy of their current military orders; or

4.3.5. Other official military documentation, determined to be appropriate by the Board, demonstrating the service member’s qualifying past or current military service; and

4.3.6. A copy of the marriage certificate with the qualifying service member and where applicable, the death certificate of the service member if the surviving spouse is applying for the military family waiver and where applicable a notarized affidavit from the surviving spouse verifying the surviving spouse has not remarried.

4.4. Honorably discharged applicants shall submit to the Board a completed application and a DD-214 form or an NGB-22 form showing the applicant has been honorably discharged from military service.

Series 06 Consideration of Prior Criminal Convictions in Initial Licensure Determinations

W. Va. Code R. § 194-6-1 General

1.1. Scope. -- This rule establishes procedures for consideration of prior criminal convictions in initial licensure determinations.

1.2. Authority. -- W. Va. Code §30-1-24, and W. Va. Code §30-37-6.

1.3. Filing Date. -- April 16, 2020

1.4. Effective Date. -- April 30, 2020

1.5. Sunset Provision. -- This rule shall terminate and have no further force or effect upon the expiration of April 30, 2030.

W. Va. Code R. § 194-6-2 Definitions

2.1. “Board” means the Massage Therapy Licensure Board established pursuant to W. Va. Code §30-37-1.

2.2. “Initial license” means obtaining a license in West Virginia for the practice of massage therapy for the first time.

2.3. “License” or “licensure” means the official authorization by the board to engage in the practice of massage therapy.

2.4. “Unreversed”, as that term refers to a criminal conviction, means that a conviction has not been set aside, vacated, pardoned, or expunged.

W. Va. Code R. § 194-6-3 Rational nexus to the practice of massage therapy

3.1. The board may not disqualify an applicant from initial licensure because of a prior criminal conviction that remains unreversed unless that conviction is for a crime that bears a rational nexus to the practice of massage therapy. In determining whether a criminal conviction bears a rational nexus to the practice of massage therapy, the board shall consider at a minimum:

3.1.1. The nature and seriousness of the crime for which the individual was convicted;

3.1.2. The passage of time since the commission of the crime;

3.1.3. The relationship of the crime to the ability, capacity, and fitness required to perform the duties and discharge the responsibilities of a licensed massage therapist; and

3.1.4. Any evidence of rehabilitation or treatment undertaken by the individual.

W. Va. Code R. § 194-6-4 Application after denial

4.1. Notwithstanding any other provision of the West Virginia Code to the contrary, if an applicant has been denied licensure because of a prior criminal conviction, the board shall permit the applicant to apply for initial licensure if:

4.1.1. A period of five years has elapsed from the date of conviction or the date of release from incarceration, whichever is later;

4.1.2. The individual has not been convicted of any other crime during the period of time following the disqualifying offense; and

4.1.3. The conviction was not for an offense of a violent or sexual nature: Provided, That a conviction for an offense of a violent or sexual nature may subject an individual to a longer period of disqualification from licensure, to be determined by the board on a case by case basis.

W. Va. Code R. § 194-6-5 Petition for licensure eligibility determination

5.1. An individual with a criminal record who has not previously applied for licensure may petition the board at any time for a determination of whether the individual’s criminal record will disqualify the individual from obtaining a license.

5.2. The petition shall be submitted on an application form prescribed by the board and shall include sufficient details about the individual’s criminal record to enable the board to identify the jurisdiction where the conviction occurred, the date of the conviction and the specific nature of the conviction.

5.3. The applicant may submit with the petition for licensure eligibility evidence of rehabilitation, letters of reference, and any other information the applicant deems relevant to show fitness and the ability to practice massage therapy.

5.4. The board shall provide the determination within 60 days of receiving the petition from the applicant.

Series 07 Establishment Licensure

W. Va. Code R. § 194-7-1 General

1.1. Scope. -- This rule establishes the policies and procedures for obtaining and renewing an establishment license issued by the Massage Therapy Licensure Board.

1.2. Authority. -- W. Va. Code §30-37-6 and W. Va. Code §30-37-13.

1.3. Filing Date. -- May 1, 2024

1.4. Effective Date. -- May 1, 2024

1.5. Sunset Provision -- This rule shall terminate and have no further force or effect on August 1, 2029.

W. Va. Code R. § 194-7-2 Definitions

2.1. "Massage establishment" means a place of business wherein massage therapy is practiced, with a physical site or premise, including mobile sites, licensed as required by this article, in which licensed massage therapists are employees, partners, or contractors practicing massage therapy on clients.

2.2. "Sole practitioner" means a licensed massage therapist who is licensed pursuant to this article, who is not an employee or contractor of the sole practitioner or an establishment, and who provides massage therapy to clients at a specific location including, but not limited to, a rental space, home office space, offsite, or onsite space.

2.3. “License” or “Massage Establishment License” means a license issued by the West Virginia Massage Therapy Licensure Board to a business that offers massage therapy services for hire.

W. Va. Code R. § 194-7-3 Establishment License Required; licensee responsibilities and prohibitions

3.1. All massage establishments shall, on or before October 1, 2023, apply for a Board issued massage establishment license, on a form prescribed by the West Virginia Massage Therapy Licensure Board. After October 1, 2023, it shall be unlawful to operate a massage establishment without a board issued massage establishment license, unless exempt as provided by W. Va. Code §30-37-1 et. seq., and this rule.

3.2. A massage establishment license shall be renewed biennially on an application renewal form prescribed by the board, with the appropriate fee, and all of the required documentation.

3.3. Massage establishment requirements:

3.3.a. A massage establishment shall post, in a prominent location, the board administered establishment license, the state license of each licensed massage therapist employed by the establishment, and any business licenses required by any state, municipality or local governmental entity.

3.3.b. Properly maintain and secure for each client the initial consultation documents, all session notes, written consent documents, and related billing records; and

3.3.c. Maintain a current list of all establishment employees and/or contractors on the premises at all times which includes the full name of each employee or contractor, and the board issued massage therapy license number and expiration date of the license for each massage therapist.

3.4. A massage establishment may not:

3.4.a. Employ or contract with an individual to perform massage services who is not a licensed massage therapist in this state and who is not a United States citizen or a legal resident with a valid work permit;

3.4.b. Allow a nude or partially nude employee to provide massage therapy or other massage services to a customer;

3.4.c. Allow any individual, including a client, license holder, contractor, or employee, to engage in sexual contact in the massage establishment.

3.4.d. Allow any individual, including a license holder, employee, or contract employee, to practice massage therapy in the nude or in clothing designed to arouse or gratify the sexual desire of any individual; or

3.4.e. Allow any individual, including a license holder, employee, or contract employee to reside on the premises of the massage establishment.

3.5. An adult oriented business may not obtain a license from the board or operate as a massage establishment.

W. Va. Code R. § 194-7-4 Exemptions

4.1. A place of business is not required to hold a massage establishment license under this article if:

4.1.a. The place of business is owned by the federal government, the state, or a political subdivision of the state, or otherwise offers massage services as authorized under any other state issued professional or occupational license; or

4.1.b. At their place of business, a licensed massage therapist practices as a sole practitioner, Provided: that the sole practitioner does not use a business name or assumed name; or the sole practitioner uses a business name or an assumed name and provides the massage therapist's full legal name or license number in each advertisement and each time the business name or assumed name appears in writing.

W. Va. Code R. § 194-7-5 Grounds for denying a license renewal, license suspension, or revocation

5.1. A licensee of a massage establishment may be disciplined, including the suspension or revocation of the license for cause, pursuant to the general provisions of W. Va. Code §30-1-1 et seq. and §30-37-1 et seq., for violating any provision of this rule, or for violating any applicable state law, rule, or policy, and for violating any applicable local ordinance.

5.2. Disciplinary action shall be governed by the provisions of 194 CSR 2, Hearing Procedures.

W. Va. Code R. § 194-7-6 Massage Establishment License Holders Continuing Education requirements

6.1. All establishment license holders who are not licensed massage therapists, shall, beginning July 1, 2025, obtain two hours of continuing education on the laws and rules of massage therapy every two years, and shall provide the certificate of completion to the board by October 1, 2025, and submitted with the application for biennial renewal of the establishment license.

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