PURSUANT TO THE PROVISIONS OF THE State Administrative Procedure Act, NOTICE is hereby given of the following action:
Action taken:
Addition of section 78.5 to Title 8 NYCRR.
Statutory authority:
Education Law, sections 207 (not subdivided), 6504 (not subdivided), 6507(2)(a) and 7807(2); and L. 2010, ch. 463, section 2
Subject:
Massage therapy continuing education.
Purpose:
To implement recently enacted statutory authority requiring continuing education for licensed massage therapists.
Text or summary was published
in the June 29, 2011 issue of the Register, I.D. No. EDU-26-11-00014-P.
Final rule as compared with last published rule:
No changes.
Revised rule making(s) were previously published in the State Register on
August 3, 2011.
Text of rule and any required statements and analyses may be obtained from:
Chris Moore, State Education Department, Office of Counsel, State Education Bldg., Room 148, 89 Washington Avenue, Albany, New York 12234, (518) 474-3862, email: legal@mail.nysed.gov
Assessment of Public Comment
The proposed rule was published in the State Registrar on June 29, 2011 and a revised rule was published on August 3, 2011. Below is a summary of the comments received by the State Education Department and the Department's response to these comments.
COMMENT:
Several comments expressed support of the requirement for continuing education, noting that there was support for massage therapists to stay current in their field through continuing education as a way to uphold the standards of the profession.
RESPONSE:
The Department agrees with this comment and appreciates the support.
COMMENT:
Comments were received opposing the $45 continuing education fee, summarized, collectively, as follows:
• I do not agree with the $45 continuing education fee in addition to the license fee. Licensees already are required to incur the cost of taking continuing education courses. The extra $45 fee imposes an additional burden on licensees, particularly independent providers who may not be able afford such cost.
• I cannot afford to take continuing education courses as a full-time licensed massage therapist working in New York City while supporting myself, since it will require that I have to take time off from work to take the classes.
• Adding a $45 fee on top of the registration renewal fee when the Department is already getting $900 from the continuing education provider is unacceptable. The $900 fee should cover the costs to administer the continuing education requirements.
• The $45 fee should be waived since massage therapists are already paying for continuing education. The fee should be waived for licensees with a certain number of years of experience. Continuing education courses should be allowed to be rolled over to the next registration period. There is no need to put a $45 fee when the state is already collecting from the provider.
RESPONSE:
Section 7807(6) of the Education Law requires that licensees pay a mandatory continuing education fee of $45 in addition to the triennial registration fee, payable on or before the first day of each triennial registration period. This proposed rule implements this statutory requirement. The Commissioner does not have the authority to waive the fee, which is prescribed in statute.
COMMENT:
Comments were received which opposed the requirement that sponsors of continuing education pay a $900 fee for approval as a sponsor, which are summarized, collectively, as follows:
• The cost of continuing education may increase if educators are required to pay a fee to teach in New York.
• The requirements for a provider to pay a $900 fee may eliminate independent qualified providers not directly affiliated with a school and who may not be able to afford such cost. This may restrict acceptable providers to those who can afford the fee or eliminate qualified providers and the courses available to be taken by licensees. Extra costs may also be incurred by licensees to travel to a qualified New York State licensed provider.
• There should be a certain number of hours that can be taken from providers who do not have to pay a fee. The number of continuing education credits allowed to be met through self-study should be increased.
• Taking a live seminar course that costs several hundred dollars plus lodging and meals for multiple day courses every three months isn't feasible for a person in my economic position. The professional association and others offer quality continuing education courses online that are affordable and these should be acceptable.
RESPONSE:
Section 7807(4) of the Education Law requires that sponsors of massage therapy continuing education file an application with the Department and pay a fee of $900. The opposed regulation implements this statutory requirement. The Commissioner cannot waive this fee, which is prescribed in statute. The courses and training offered by sponsors who are professional associations and others that meet the requirements in the regulations could be acceptable under the statute and accordingly under this proposed regulation.
COMMENT:
Certain comments addressed the restriction in Section 7807(4) of the Education Law, which provides, in pertinent part, that while presenters of didactic instruction may be provided by persons who are not licensed by the State of New York as massage therapists, the practical application of such modalities and techniques must be done by licensed massage therapists, or those otherwise authorized, when this continuing education occurs in New York State. The comments were as follows:
• The requirement that all providers be New York State licensed massage therapists limits our options and increases costs for travel.
• Out-of-state providers are forbidden to demonstrate the practical aspects. I want to be able to feel their hands on me.
• Courses being offered by physical therapists and others that cover intake and other areas of massage therapy could not be taken.
RESPONSE:
As noted above, providers of didactic continuing education need not be licensed or otherwise authorized to practice massage therapy in New York. The restriction in Education Law section 7807(4) states that the practical application of modalities and techniques must be done by licensed massage therapists or by those otherwise authorized. This section of Education Law is also consistent with the provisions of Article 155 of Education Law, which authorizes and establishes the practice of massage therapy and does not provide an exemption for persons from other states, whether licensed, or not, to practice in New York State. As provided in section 7807(4), any otherwise authorized person may provide the practical application of modalities and techniques in an approve continuing education program. Physical therapists are among those who are otherwise authorized to practice massage therapy in accordance with Section 7805(1) of Education Law.
COMMENT:
Certain comments addressed the number of hours of continuing education for each triennial period or the possibility of having to take additional hours if courses taken as continuing education for one profession cannot be used to meet the requirements for massage therapy. The comments were as follows:
• 36 hours every three years is a lot to ask of a massage therapist.
• For some in parallel fields, this is a new continuing education requirement that will mean excessive requirements if they have to take the same courses.
RESPONSE:
Section 7807(2) of the Education Law requires that during each triennial registration period, meaning a registration period of three years' duration, an applicant for registration shall complete at least 36 hours of continuing education, acceptable to the Department, a maximum of 12 hours of which may be in self-instructional coursework acceptable to the Department. The statute specifies that, during each triennial period, the licensee must complete 36 hours of continuing education, which, therefore, would not permit courses to be carried from one period to another. Additionally, the intent of the statute and regulations is to ensure that massage therapists obtain the required continuing education during each registration period. There are no mandated areas of study for each applicant, so individuals who have mandated continuing education study in massage therapy, in addition to another profession or discipline, would not be required to take the same courses, but would have to meet the mandated requirements in all professions where licensed. This law would not prohibit the Department from accepting specific courses to meet the requirement in more than one profession in accordance with the requirements of each profession.
COMMENT:
Education Law section 7807(2) requires that during each triennial registration period, meaning a registration period of three-year duration, an applicant for registration shall complete at least 36 hours of continuing education, acceptable to the Department, a maximum of 12 hours of which may be in self-instructional coursework acceptable to the Department. Clarity was sought regarding the content of the self-instruction, including the number of hours that could be taken through distance education or online instruction. Four comments were received as follows:
• I seek clarification of the 'self instruction' that is allowed for 12 hours. I understand that 5 hours of this can be online.
• I would like to know exactly what modes of learning, such as books, videos and DVDs can be accepted.
• The number of allotted hours for self study online should be increased and or better explained.
• I think that more courses should be able to be taken online than just six of the 12 hours of self-instruction courses.
RESPONSE:
Education Law section 7807(2) provides that 12 hours of acceptable coursework may be self-instructional. Such coursework can include all the subjects identified in subparagraph (i) of paragraph (2) of subdivision (c) of the proposed regulations. There is, however, no limit to the number of hours that can be taken in distance learning that is not self-instructional, including online instruction, as long as massage therapists have documentation acceptable to the Department verifying his or her completion of the coursework and detailing the duration of the course. There is a limit of six hours on the amount of self-instructional courses that have been approved by other jurisdictions but not approved in New York.
COMMENT:
A comment was received regarding the subjects deemed acceptable for continuing education. Particularly the comment requested that Lymphedema be expressly added to the examples of specific physical conditions in which a course may relate to which would deem the course acceptable continuing education. The commenter expressed concern that massage therapists who provide treatment for Lymphedema were not being treated fairly in light of pending federal legislation.
RESPONSE:
The proposed regulation merely offers an example of a course relating to a physical condition that qualifies as acceptable continuing education and does not provide an enumerated list of physical conditions in which courses relating thereto are deemed acceptable. Thus, the regulation does not exclude a course relating to Lymphedema as an acceptable subject for the continuing education. To the extent Lymphedema is a physical condition that may require massage therapy, courses relating to such condition would be acceptable as continuing education coursework pursuant to the regulation. Additionally, the purpose of the regulation, however, is not to address federal or state legislation. This regulation implements a State statute.
COMMENT:
• The continuing education requirement may increase illegal practice by making it more difficult and expensive for practitioners to practice legally.
• We may actually be promoting illegal practice of massage therapy.
• Those who do practice legally may have to charge even more to recoup their expenses, and those who practice illegally have the liberty to continue to charge as they have been. This adds to the difficulty of doing business in New York State.
RESPONSE:
Section 7807 of the Education Law requires that licensed massage therapists to complete continuing education requirements to register each triennial period. The purpose of the regulations is to enhance the health, safety, and well-being of the citizens of the state who seek the services of licensed professionals by ensuring that such professionals maintain their professional competence. This regulation provides for the monitoring and enforcement of compliance with these requirements. Current law and regulations provides for the civil and criminal prosecution of illegal practice, which should prevent the unlawful practice of massage therapy while upholding the integrity of the field.
