DISCIPLINARY AND COMPLAINT
PROCEDURES FOR MASSAGE THERAPISTS
1.1. Scope. -- These
procedural rules establish procedures for the investigation and
resolution of complaints against massage therapists.
1.2. Authority. -- W.
''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
1.4. Effective Date. --
January 15, 2001.
This rule applies to all
licensed massage therapists.
The following words and phrases
as used in this rule have the following meanings, unless the
context otherwise requires:
means an individual who holds a license to practice massage
therapy issued by this Board
means the West Virginia MassageTherapy Licensure Board.
means a license by the Board pursuant to W. Va. Code
'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.
'194-3-5. Disposition of
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
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
5.6.3. That more information
will be required in order to adequately review the individual
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
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
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
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
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.
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