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36-35 MASSAGE THERAPISTS
CHAPTER 36-35

MASSAGE THERAPISTS

36-35-1      Definitions.
36-35-2      Appointment of board members--Terms--Vacancy.
36-35-3      Resignation of board members--Effective date.
36-35-4      Selection of officers.
36-35-5      Meetings of board.
36-35-6      Quorum--Majority vote.
36-35-6.1      Powers of board.
36-35-7      Compensation of board members.
36-35-8      Display of license_Proof of licensure.
36-35-9      Use of fees.
36-35-10      Practice of massage without license or employment of unlicensed person as misdemeanor.
36-35-11      Repealed.
36-35-12      Application for license--Qualifications--Appeal of denial.
36-35-12.1      Temporary permit.
36-35-12.2      Repealed.
36-35-12.3      Expiration of license.
36-35-13      Unprofessional conduct.
36-35-14      Repealed.
36-35-15      Applicants licensed in other states.
36-35-16      Renewal of license.
36-35-17      Application and license fees.
36-35-18      Duplicate license.
36-35-18.1      Inactive status.
36-35-19      Continuing education requirements.
36-35-20      Investigation of complaints--Inspections.
36-35-21      Professional liability insurance coverage.
36-35-22      Grounds for cancellation, suspension, or revocation of license--Hearing--Appeal.
36-35-23      Reapplication for cancelled, suspended, or revoked license.
36-35-24      Promulgation of rules.
36-35-25      Application of chapter.


36-35-1 Definitions.
     36-35-1.   Definitions. Terms in this chapter mean:
             (1)      "Board," the Board of Massage Therapy;
             (2)      "Licensee," a person who meets the qualifications for licensure pursuant to this chapter and holds a valid license to practice massage therapy;
             (3)      "Massage," the systematic mobilization of the soft tissues of the body through the application of hands, feet, or devices for the purposes of therapy, relaxation, or education through means which include:
             (a)      Pressure, friction, stroking, rocking, kneading, percussion, compression, or stretching;
             (b)      External application of water, heat, cold, lubricants, or other topical agents; or
             (c)      The use of devices that mimic or enhance the actions of human hands or feet; and
             (4)      "Practice of massage therapy," the performance of massage for a fee or other compensation or holding oneself out to the public as performing massage.

Source: SL 2005, ch 206, § 1; SL 2016, ch 197, § 1.


36-35-2 Appointment of board members--Terms--Vacancy.
     36-35-2.   Appointment of board members--Terms--Vacancy. The board consists of five members appointed by the Governor. The term of a board member is three years. One member of the board shall be a person not licensed by the board. Four members of the board shall be persons licensed by the board. The Governor shall fill any vacancy by appointment to complete the unexpired portion of the vacancy. No person may serve more than three consecutive full terms on the board. The appointment to an unexpired term is not considered a full term.
     The terms of members begin on October thirty-first of the calendar year in which the Governor appoints the member, unless otherwise designated by the Governor. The appointee's term expires on October thirtieth in the third year of appointment.

Source: SL 2005, ch 206, § 2; SL 2012, ch 16, § 14; SL 2013, ch 176, § 8; SL 2016, ch 197, § 2.


36-35-3 Resignation of board members--Effective date.
     36-35-3.   Resignation of board members--Effective date. Any member of the board may resign by giving written notice to the board and to the Governor. Resignations are effective when delivered to the Governor and the board.

Source: SL 2005, ch 206, § 3.


36-35-4 Selection of officers.
     36-35-4.   Selection of officers. The board shall annually elect from its members a president, vice-president, and secretary.

Source: SL 2005, ch 206, § 4; SL 2016, ch 197, § 3.


36-35-5 Meetings of board.
     36-35-5.   Meetings of board. The board shall hold at least two meetings per year at a place and time set by the board. The board may hold additional meetings at a time and place set by the president or a majority of the board.

Source: SL 2005, ch 206, § 5; SL 2016, ch 197, § 4.


36-35-6 Quorum--Majority vote.
     36-35-6.   Quorum--Majority vote. Three board members present at any meeting constitute a quorum. No board action may occur unless approved by a majority vote of the entire board.

Source: SL 2005, ch 206, § 6.


36-35-6.1 Powers of board.
     36-35-6.1.   Powers of board. The board may:
             (1)      Administer, coordinate, and enforce the provisions of this chapter;
             (2)      Evaluate the qualifications of applicants for licensure and permits and issue and renew licenses and permits;
             (3)      Maintain the names of persons that meet the qualifications for licensure;
             (4)      Conduct all disciplinary proceedings under this chapter;
             (5)      Maintain a record of each complaint received by the board;
             (6)      Establish standards for the safe and qualified practice of massage therapy;
             (7)      Report licensing actions and status to relevant state and federal governing bodies as may be required, or as the board deems appropriate; and
             (8)      Employ or contract with personnel and enter into contracts pursuant to law to carry out the board's responsibilities.

Source: SL 2016, ch 197, § 19.


36-35-7 Compensation of board members.
     36-35-7.   Compensation of board members. Board members shall receive a per diem set pursuant to § 4-7-10.4 and expenses at the same rate as other state employees while actually engaged in official duties.

Source: SL 2005, ch 206, § 7.


36-35-8 Display of license--Proof of licensure.
     36-35-8.   Display of license--Proof of licensure. Any person engaged in the practice of massage in this state shall conspicuously display a valid license from the board in the licensee's regular place of business. If the licensee is providing massage therapy outside of the licensee's regular place of business, the licensee shall, upon request, produce photo identification and proof of licensure. Failure to comply with this section is a petty offense.

Source: SL 2005, ch 206, § 8; SL 2013, ch 184, § 1; SL 2016, ch 197, § 5.


36-35-9 Use of fees.
     36-35-9.   Use of fees. Any fees collected under this chapter shall be used for the operation of the board and the implementation of this chapter.

Source: SL 2005, ch 206, § 9; SL 2013, ch 184, § 2.


36-35-10 Practice of massage without license or employment of unlicensed person as misdemeanor.
     36-35-10.   Practice of massage without license or employment of unlicensed person as misdemeanor. Any person who engages in the practice of massage or holds himself or herself out to the public as engaged in the practice of massage without a license issued pursuant to this chapter, or owns, operates or manages a business which knowingly employs or contracts with any unlicensed person to offer or provide massage therapy, is guilty of a Class 1 misdemeanor. The board may bring a civil action to enjoin any violation of this chapter.

Source: SL 2005, ch 206, § 10; SL 2013, ch 184, § 3; SL 2016, ch 197, § 6.


36-35-11
     36-35-11.   Repealed by SL 2013, ch 184, § 4.


36-35-12 Application for license--Qualifications--Appeal of denial.
     36-35-12.   Application for license--Qualifications--Appeal of denial. The board shall issue a license to engage in the practice of massage to any person who submits an application form and the nonrefundable application fee as approved in § 36-35-17 and who demonstrates the following qualifications:
             (1)      Eighteen years of age or older;
             (2)      Completion of no less than five hundred hours of training or study in the practice of massage with a facility or instructor recognized by the board;
             (3)      Absence of unprofessional conduct;
             (4)      Professional liability insurance coverage pursuant to § 36-35-21; and
             (5)      Passing score on a nationally recognized competency examination approved by the board in rules promulgated pursuant to chapter 1-26.
     The board may refuse to grant a license to any person based on failure to demonstrate the requirements of this section. The board may grant a license, subdivision 36-35-13(1) notwithstanding, if the applicant has been convicted of, or pled guilty to a felony, any crime involving or relating to the practice of massage, or any crime involving dishonesty or moral turpitude and the board determines that the plea or conviction is of a nature or is sufficiently remote in time that the applicant does not constitute a risk to public safety. An applicant may appeal the denial of a license in compliance with chapter 1-26.

Source: SL 2005, ch 206, § 12; SL 2007, ch 223, § 1; SL 2013, ch 184, § 5; SL 2015, ch 201, § 1.


36-35-12.1 Temporary permit.
     36-35-12.1.   Temporary permit. Upon application and payment of an application fee not to exceed seventy-five dollars, the board may issue a temporary permit to practice massage therapy to an applicant who has met the requirements of subdivision 36-35-12(1) to (4), inclusive, pending completion and results of the examination required pursuant to subdivision 36-35-12(5), if the applicant intends to practice massage therapy in the state during the time the permit is valid. A temporary permit may be issued no more than twice and is effective for a term of not more than ninety days. A temporary permit automatically expires on the occurrence of the following:
             (1)      Issuance of a regular license;
             (2)      Failure to pass the licensing examination; or
             (3)      Expiration of the term for which the temporary license was issued.

Source: SL 2013, ch 184, § 6; SL 2015, ch 201, § 2; SL 2016, ch 197, § 7.


36-35-12.2
     36-35-12.2.   Repealed by SL 2016, ch 197, § 8.


36-35-12.3 Expiration of license.
     36-35-12.3.   Expiration of license. A license issued under this chapter is valid until September thirtieth following the date it is issued and automatically expires unless it is renewed.

Source: SL 2013, ch 184, § 8; SL 2016, ch 197, § 9.


36-35-13 Unprofessional conduct.
     36-35-13.   Unprofessional conduct. For the purposes of this chapter, any of the following acts constitute unprofessional conduct:
             (1)      Conviction of or a plea of guilty to any felony, any crime involving or relating to the practice of massage, or any crime involving dishonesty or moral turpitude;
             (2)      Providing the board false or misleading information on any application for a license or renewal of a license;
             (3)      Willful misconduct or negligence in the practice of massage;
             (4)      Exceeding the scope of practice of massage as defined in § 36-35-1;
             (5)      Engaging in any lewd or immoral conduct;
             (6)      Making fraudulent charges for services;
             (7)      Engaging in conduct which endangers the health or welfare of clients or other persons;
             (8)      Failure to comply with any provision of this chapter; or
             (9)      Engaging in any act that aids, abets, facilitates, or promotes a violation of this chapter.

Source: SL 2005, ch 206, § 13; SL 2013, ch 184, § 9; SL 2015, ch 201, § 3; SL 2016, ch 197, § 10.


36-35-14
     36-35-14.   Repealed by SL 2016, ch 197, § 11.


36-35-15 Applicants licensed in other states.
     36-35-15.   Applicants licensed in other states. Notwithstanding the provisions of § 36-35-12, the board may issue a license to an applicant licensed to practice massage therapy in another state if the applicant demonstrates the following qualifications:
             (1)      Eighteen years of age or older;
             (2)      Absence of unprofessional conduct;
             (3)      Professional liability insurance pursuant to § 36-35-21;
             (4)      Verification from the authority that issued the applicant's license indicating the applicant is in good standing and currently licensed to practice; and
             (5)      Experience and competency in massage indicated by education that substantially complies with subdivision 36-35-12(2) or verification of an active massage therapy practice in the state of licensure in the two years immediately preceding the date of application for licensure.
     For the purpose of this section, the term, active massage therapy practice, means the applicant has had at least two hundred hours of patient contact in the preceding two-year period.

Source: SL 2005, ch 206, § 15; SL 2013, ch 184, § 10; SL 2016, ch 197, § 12.


36-35-16 Renewal of license.
     36-35-16.   Renewal of license. Any licensee holding a valid license under this chapter may renew that license by making application for renewal, paying the required renewal fee, and providing proof of compliance with the continuing education requirements set by the board. If the board has not received a license renewal application by the expiration date, the board shall notify the licensee within five days that the renewal application has not been received and that the licensee may not practice until the license is renewed. Any person who submits a license renewal application and provides proof of compliance with the continuing education requirements set by the board within thirty days after the expiration date may be granted a license renewal.

Source: SL 2005, ch 206, § 16; SL 2011, ch 187, § 2; SL 2013, ch 184, § 11; SL 2016, ch 197, § 13.


36-35-17 Application and license fees.
     36-35-17.   Application and license fees. Any applicant for a license under this chapter shall submit a nonrefundable application fee not to exceed one hundred dollars. Any person who has a license issued or renewed by the board shall submit a license fee in an amount not to exceed sixty-five dollars. Fees shall be set by the board by rule promulgated pursuant to chapter 1-26.

Source: SL 2005, ch 206, § 17; SL 2007, ch 223, § 3; SL 2008, ch 191, § 76.


36-35-18 Duplicate license.
     36-35-18.   Duplicate license. The board may issue a duplicate license to a licensee upon request.

Source: SL 2005, ch 206, § 18; SL 2008, ch 191, § 77; SL 2013, ch 184, § 12.


36-35-18.1 Inactive status.
     36-35-18.1.   Inactive status. The board may place a massage therapy license on inactive status upon submission of an application and payment of the application fee.

Source: SL 2007, ch 223, § 5; SL 2016, ch 197, § 14.


36-35-19 Continuing education requirements.
     36-35-19.   Continuing education requirements. Any person licensed under this chapter shall complete eight hours of continuing education relating to competence in the practice of massage on a biennial basis of a type and from a facility or instructor approved by the board. The required continuing education hours may be obtained by electronic means. The board may waive the continuing education requirement upon proof of illness or hardship.

Source: SL 2005, ch 206, § 19; SL 2007, ch 223, § 4; SL 2013, ch 184, § 13.


36-35-20 Investigation of complaints--Inspections.
     36-35-20.   Investigation of complaints--Inspections. The board may receive and investigate any complaint filed with the board alleging a violation of this chapter. The board may inspect the place of business of the licensee named in a complaint during normal business hours or upon written notice.

Source: SL 2005, ch 206, § 20; SL 2013, ch 184, § 14; SL 2016, ch 197, § 15.


36-35-21 Professional liability insurance coverage.
     36-35-21.   Professional liability insurance coverage. Any person holding a valid license under this chapter and engaged in the practice of massage therapy shall carry malpractice or professional liability insurance coverage with a company with a certificate of authority from the South Dakota Division of Insurance with limits of no less than two hundred fifty thousand dollars per occurrence. A licensee shall notify the board of any change of carrier occurring after a license or renewal is granted.

Source: SL 2005, ch 206, § 21; SL 2013, ch 184, § 15.


36-35-22 Grounds for cancellation, suspension, or revocation of license--Hearing--Appeal.
     36-35-22.   Grounds for cancellation, suspension, or revocation of license--Hearing--Appeal. The board may cancel, suspend, or revoke a license following a contested case hearing in compliance with chapter 1-26 upon satisfactory proof of incompetence, unprofessional conduct, or a violation of any provision of this chapter. The board may waive the requirement of prior notice and an informal meeting set forth in § 1-26-29 if the licensee presents an immediate threat to the public or has engaged in willful misconduct. Any licensee may appeal the cancellation, suspension, or revocation of a license in compliance with chapter 1-26.

Source: SL 2005, ch 206, § 22; SL 2016, ch 197, § 16.


36-35-23 Reapplication for cancelled, suspended, or revoked license.
     36-35-23.   Reapplication for cancelled, suspended, or revoked license. Any person whose license has been cancelled, suspended, or revoked by the board may not reapply for a license until one year after it was cancelled, suspended, or revoked unless a different time has been set by the board.

Source: SL 2005, ch 206, § 23.


36-35-24 Promulgation of rules.
     36-35-24.   Promulgation of rules. The board may promulgate rules pursuant to chapter 1-26 to establish:
             (1)      The form and information required for any license application;
             (2)      A list of recognized facilities or instructors who may provide training or instruction required for licensure or continuing education requirements;
             (3)      The amount of license fees;
             (4)      The procedures for placing a license on inactive status and the procedures to regain active licensure; and
             (5)      Approval of national competency examinations.

Source: SL 2005, ch 206, § 24; SL 2007, ch 223, § 6; SL 2013, ch 184, § 16; SL 2016, ch 197, § 17.


36-35-25 Application of chapter.
     36-35-25.   Application of chapter. The provisions of this chapter do not apply to any person performing massage for compensation if the massage is done under one of the following circumstances:
             (1)      As part of a licensed practice as a physician, physician assistant, chiropractor, nurse, physical therapist, athletic trainer, or other health care profession licensed or certified under title 36;
             (2)      As part of a licensed practice pursuant to chapter 36-14 or 36-15, if the licensee is performing within the scope of the licensed practice and the licensee does not hold himself or herself out to be a massage therapist or to be engaged in the practice of massage therapy;
             (3)      In furtherance of duties as an employee of the United States;
             (4)      As part of a course of study with a facility or instructor recognized and approved by the board to provide training in massage or the provision of such instruction;
             (5)      As part of providing a course of instruction or continuing education by a licensed massage therapist from another state or provider preapproved by the board, in the practice of massage therapy on a temporary basis not in excess of ten days per calendar year; or
             (6)      Manipulation of the soft tissues of the human body is restricted to the hands, feet, or ears and the person does not hold himself or herself out to be a massage therapist or to be engaged in the practice of massage therapy.

Source: SL 2005, ch 206, § 25; SL 2016, ch 197, § 18.


Title 36

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