Statutory authority:
Explanation of agency authority:
Pursuant to ss. 15.085 (5) (b), and 227.11 (2) (a), Stats., the Massage Therapy and Bodywork Therapy Affiliated Credentialing Board (Board) is generally empowered by the legislature to promulgate rules that will provide guidance within the profession and rules that interpret the statutes it enforces or administers. Section 460.04 (2) (a), Stats., specifically empowers the Board to draft rules regarding the professional conduct of licensees practicing massage therapy or bodywork therapy. This proposed rule seeks to carry out this mandate by revising the rules related to unprofessional conduct. Related statute or rule:
None.
Plain language analysis:
The passage of 2009 Wisconsin Act 355 transformed the Massage Therapy and Bodywork Council into the Massage Therapy and Bodywork Therapy Affiliated Credentialing Board (Board). The Act granted the newly formed Board rule-making authority. Pursuant to that authority, the Board reviewed its unprofessional conduct rules and decided the rules were outdated and needed updating. The modernization of the rules will not result in a significant policy change but rather a further clarification of the ethical goals of the profession. SECTION 1. creates a section identifying the authority to promulgate the proposed rules.
SECTION 2. renumbers MTBT 5.02.
SECTION 3. modernizes the definition of unprofessional conduct for massage therapist and bodywork therapists.
SECTION 4. creates a provision regarding auditing continuing education requirements.
Summary of, and comparison with, existing or proposed federal regulation:
None.
Comparison with rules in adjacent states:
Illinois: The grounds for unprofessional conduct for Illinois licensed massage therapists and bodywork therapists are governed by statute, ILL. Comp. Stat. 225/57. The rules are similar to current Wisconsin unprofessional conduct rules in that they are comprehensive ranging from prohibitions against false advertising to inability to practice with reasonable judgment and skill.
Iowa: The Iowa Administrative Code sets forth the grounds for discipline of massage therapists in 645 IAC 134.2. The rules are similar to Wisconsin in that they cover a variety of topics; however the Iowa rules focus primarily on fraudulent behavior such as fraud in procuring a license, untruthful or improbable statements in advertising, and acceptance of any fee by fraud.
Michigan: Prohibited conduct of massage therapists as set forth in Michigan Administrative Code R 338.723, is limited to eight prohibitions. The prohibitions focus primarily on exceeding the boundaries of a professional relationship with clients such as taking on a professional role when a personal, scientific, legal, financial, or other relationship impairs the exercise of professional discretion or being involved in a dual relationship with a current or former client.
Minnesota: In Minnesota massage therapy and bodywork therapy are identified as complementary and alternative health care practices, Minn. Stat. §146A.01. Those who conduct alternative health care practices are regulated by statute, Minn. Stat. §146A.08. The statute identifies prohibited conduct covering a variety of topics including: prohibition against sexual contact with clients, adjudication as mentally incompetent and fraudulent billing practices.
Summary of factual data and analytical methodologies:
The Board reviewed its current unprofessional conduct rules and decided that the rules needed to be updated to conform to current practice within the profession. No other factual data or analytical methodologies were used. The Board ensures the accuracy, integrity, objectivity and consistency of data were used in preparing the proposed rule and related analysis.
Analysis and supporting documents used to determine effect on small business or in preparation of economic impact analysis:
These proposed rules do not have an economic impact on small businesses as defined in s. 227.114 (1), Stats. The Department’s Regulatory Review Coordinator may be contacted by email at Tom.Engels@wisconsin.gov, or by calling (608) - 266-8608. Fiscal Estimate and Economic Impact Analysis:
The Fiscal Estimate and Economic Impact Analysis are attached.
Effect on small business:
These proposed rules do not have an economic impact on small businesses, as defined in s. 227.114 (1), Stats. The Department’s Regulatory Review Coordinator may be contacted by email at Tom.Engels@wisconsin.gov, or by calling (608) 266-8608. Agency contact person:
Shawn Leatherwood, Administrative Rules Coordinator, Department of Safety and Professional Services, Division of Policy Development, 1400 East Washington Avenue, Room 151, P.O. Box 8366, Madison, Wisconsin 53708; telephone (608) 261-4438; email at Shancethea.Leatherwood@wisconsin.gov. ------------------------------------------------------------------------------------------------------------
TEXT OF RULE
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Section 1. MTBT 5.01 is repealed and recreated to read:
MTBT 5.01 Authority. The definitions of this chapter are adopted by the board pursuant to the authority delegated by ss. 15.085 (5) (b) and 460.04 (2) (a), Stats., to establish the standards of ethical conduct for massage therapists and bodywork therapists. Section 2. MTBT 5.02 is renumbered MTBT 5.03.
Section 3. MTBT 5.02 is created to read:
MTBT 5.02 Unprofessional conduct. “Unprofessional conduct” includes the following, or aiding, abetting, or conspiring the same:
(2) Being convicted of any of the following: ss. 940.22, 940.225, 944.15, 944.17, 944.30 (1m), 944.31, 944.32, 944.33, 944.34, 948.02, 948.025, 948.08, 948.085, 948.09, 948.095, and 948.10, Stats. (3) Engaging in fraud, misrepresentation or deceit in applying for or procuring a license to practice massage therapy or bodywork therapy, in connection with applying for or procuring periodic renewal of a license, or in otherwise maintaining a license.
