No. 36132 (5-year Review): Rule R156-47b. Massage Therapy Practice Act Rule

DAR File No.: 36132
Filed: 05/01/2012 10:14:08 AM

NOTICE OF REVIEW AND STATEMENT OF CONTINUATION

Concise explanation of the particular statutory provisions under which the rule is enacted and how these provisions authorize or require the rule:

Title 58, Chapter 47b, provides for the licensure of massage therapists and massage apprentices. Subsection 58-1-106(1)(a) provides that the Division may adopt and enforce rules to administer Title 58. Subsection 58-47b-201(3) provides that the Board of Massage Therapy's duties and responsibilities shall be in accordance with Section 58-1-202. Subsection 58-1-202(1)(a) provides that one of the duties of each board is to recommend appropriate rules to the Division Director. This rule was enacted to clarify the provisions of Title 58, Chapter 47b, with respect to massage therapists and massage apprentices.

Summary of written comments received during and since the last five-year review of the rule from interested persons supporting or opposing the rule:

Since this rule was last reviewed in December 2010, it has been amended two times. The Division received the following written comments with respect to proposed amendments which had been filed in DAR No. 35498: 01/12/2012 email from Allison Mitchell in which she supported proposed amendments; 01/15/2012 email from Sylvia Noon in which she commented on the proposed amendments; 01/16/2012 email from Cheri Johnson in which she commented on the proposed amendments; 01/17/2012 email from Dawn Littleworth commenting on the proposed amendments; 01/17/2012 email from Erica Basden commenting on the proposed amendments; 01/17/2012 email from Ron Findlay, representing the American Massage Therapy Association-Utah Chapter, supporting the proposed amendments; 01/17/2012 letter from Jeff Stucki in which he opposed the proposed amendments in which the term "manipulation" was further defined and clarified; Mr. Stucki suggested that the proposed amendment be handled through the legislative process rather than as a proposed rule amendment filing; and a 01/17/2012 letter from Tanja Tuttle opposing the proposed amendments. The Division also received a 01/17/2012 letter from William McCullough in which he inquired about a rule hearing date with respect to the proposed amendments filed under DAR No. 35498. The Division sent a reply email to Mr. McCullough on 01/17/2012 in which he was informed that a 01/09/2012 rule hearing had been conducted with respect to the proposed amendments and that notification of the rule hearing was published in the Utah State Bulletin. The Division also received a 01/17/2012 form letter requesting a rule hearing with respect to proposed amendments to this rule from the following individuals: Carly Cannavo, Whitney Justensen, Jillian Disraeli, Robin Craghead, Paul Gordon and Jacelyn Cash. Each of these individuals were also notified by the Division that a 01/09/2012 rule hearing had been conducted with respect to the proposed amendments and that notification of the rule hearing was published in the Utah State Bulletin. The Division also received a 02/02/2012 email from David Nelson in which Mr. Nelson opposes wording in Subsection R156-47b-302d(1)(a) with respect to Title 78, Chapter 5, Part 4.

Reasoned justification for continuation of the rule, including reasons why the agency disagrees with comments in opposition to the rule, if any:

This rule should be continued as it provides a mechanism to inform potential licensees of the requirements for licensure as allowed under statutory authority provided in Title 58, Chapter 47b, with respect to massage therapists and massage apprentices. The rule should also be continued as it provides information to ensure applicants for licensure are adequately trained and meet minimum licensure requirements and provides licensees with information concerning unprofessional conduct, definitions, and ethical standards relating to the profession. In response to Mr. Nelson's written comments about his opposition to wording in Subsection R156-47b-302d(1)(a), the Division does not disagree with the facts of Mr. Nelson's comments. The Division disagrees with Mr. Nelson's requested solution to amend the rule due to a Supreme Court ruling that might invalidate a Utah statute referred to in this rule. The Division has spoken with Mr. Nelson multiple times regarding various Division rules and does not intend to follow his requested solution. The Board of Massage Therapy, during a scheduled Board meeting on 01/17/2012, discussed public comments which had been made during the 01/09/2012 rule hearing. Given the fact that the majority of the written comments were received after the Board's 01/17/2012 meeting, the written comments were actually reviewed during the Board's next scheduled meeting which was held on 03/20/2012. Regarding the Tuttle and Stucki written comments received in which they both expressed opposition to the Division's proposed amendments filed under DAR No. 35498, it should be noted that some of the opposed language was amended into the governing massage therapy statute, Title 58, Chapter 47b, during the recently completed 2012 General Session of the Utah Legislature in H.B. 114. Legislative hearings were also held with respect to the statutory proposed amendments. Aside from the legislative changes, the Board and Division reviewed the Tuttle and Stucki comments but disagreed with their positions. After extensive review of the written comments received and consideration of comments made during the 01/09/2012 rule hearing, the Division, in consultation with the Board of Massage Therapy Board, determined that the proposed amendments filed under DAR No. 35498 should be become effective with no additional changes. The Division thus filed a "Notice of Effective Date" with the Division of Administrative Rules on 01/26/2012.

The full text of this rule may be inspected, during regular business hours, at the Division of Administrative Rules, or at:

Commerce
Occupational and Professional Licensing
HEBER M WELLS BLDG
160 E 300 S
SALT LAKE CITY, UT 84111-2316

Direct questions regarding this rule to:

• Sally Stewart at the above address, by phone at 801-530-6179, by FAX at 801-530-6511, or by Internet E-mail at [e-mail]

Authorized by:

Mark Steinagel, Director

Effective:

05/01/2012

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