[Adopted 10-18-2017]
A.
On October 18, 2017, the Lexington Board of Health, pursuant to the
authority granted under Massachusetts General Laws (MGL), Chapter
111, § 31 adopts these Regulations Governing the Practice
of Bodywork to protect the public health and safety of the community.
B.
These regulations will take effect February 1, 2018.
Whereas persons working in this particular service industry
have often been found to identify themselves as bodyworkers in order
to gain exemption from the Massachusetts Rules and Regulations Governing
Massage Therapists, it is necessary to enact these Regulations Governing
the Practice of Bodywork to protect the public health and safety of
the community. The scope of these regulations is broad and includes
many aspects which if not adequately regulated could endanger the
community with the risk of prostitution, human trafficking and disease
transmission. It is the Board's intent that only individuals who meet
and maintain a minimum standard of competence and conduct within their
scope of practice as a professional may provide services to the public.
These regulations designate the requirements for obtaining a permit
to operate a bodywork establishment and permit to practice bodywork,
as well as grounds for suspension, revocation or denial of such a
permit.
Shall mean an administrative action with immediate effect
taken by the Department for cause when a permit holder fails to renew
a permit, or denies entry to an agent of the Department during the
conduct of an inspection. A permit holder whose permit has been administratively
revoked cannot lawfully continue to practice as a bodywork therapist
or to operate a bodywork establishment in the Town of Lexington. Permits
that have been administratively revoked may be reinstated upon meeting
the conditions contained in these regulations.
Shall mean a person who has received delegation of authority
from the Public Health Director to perform functions subject to these
regulations.
Shall mean a person seeking a permit that has submitted an
application and the applicable application fee for a permit to the
Board of Health.
Shall mean the application approved by the Public Health
Director and provided by the Department.
Shall mean the Lexington Board of Health.
Shall refer to the practice of a person representing himself
or herself as a bodyworker or bodywork therapist, or the practice
of a person using primarily touch to manipulate tissue, which does
not constitute massage as defined in MGL, c. 135, in the course of
a treatment or therapy provided to another person. Bodywork may include
the affectation of the human energy system or acupoints or QI meridians
of the human body. The Board, in conjunction with the Department,
will maintain a list of treatment and therapy modalities considered
bodywork for the purposes of these regulations.
Shall mean successful completion of the most current requirements
of the American Organization for Bodywork Therapies of Asia (AOBTA®),
National Certification Commission for Acupuncture and Oriental Medicine
(NCCAOM), American Reflexology Certification Board, or other national
professional membership organization recognized by the Institute for
Credentialing Excellence, or its accrediting body, that provides a
certification or credential for bodywork. Any such national professional
membership organization or national certification commission must
include an established set of educational standards, require compliance
with a specific code of ethics, and offer a grievance process. All
certifications and/or credentials must be approved by the Public Health
Director or the Board of Health.
Shall mean a person with whom the bodywork therapist has
an agreement to provide bodywork therapy services.
Shall mean the Office of Public Health.
Shall mean the Public Health Director.
Shall mean any location, or portion thereof, as listed on
the permit and under the control of an individual operator, which
advertises and/or provides bodywork therapy services on the premises.
Any health care facility licensed by an agency of the Commonwealth
of Massachusetts, or the office of any health care professional licensed
by the Commonwealth of Massachusetts wherein bodywork therapy services
are not advertised or provided except on an occasional outcall basis
is not an establishment for the purposes of these regulations. Any
location within a licensed health care facility or health care professional's
office which is dedicated to and maintained for the use of a therapist
who performs occasional therapy services to the patients of the facility
is a bodywork establishment for the purposes of permitting under these
regulations and the portions of the facility or office wherein bodywork
therapy services are provided must be in compliance with these regulations.
Shall mean the times when the establishment is open to the
public for the practice of bodywork.
Shall mean the person possessing the permit to operate a
bodywork establishment issued by the Department.
Shall mean either a document issued by the Department allowing
a specific person to operate a bodywork establishment in the Town
of Lexington, or a document issued by the Department allowing a specific
person to practice bodywork in the Town of Lexington.
Shall mean a person holding a permit, which is in his or
her name, issued by the Department.
Shall mean any individual, firm, corporation, partnership,
organization, or body politic.
Shall mean the permit holder present at the bodywork establishment
who is responsible for the operation at the time of inspection, and
who is authorized to sign Department inspection forms and communicate
with the Department or its authorized agent(s).
Shall mean a permit that has not been renewed for more than
12 consecutive months.
Shall mean a person holding a permit to practice bodywork,
which is in his or her name, issued by the Department.
A.
Any physician, chiropractor, osteopath, nurse, physical therapist,
occupational therapist, massage therapist or acupuncturist operating
within the scope of his/her Commonwealth of Massachusetts license
or registration and not representing him/herself as a bodywork therapist
shall be exempt from these regulations.
B.
Hospitals, long-term care facilities, and home health agencies licensed
or certified under the laws of the Commonwealth of Massachusetts shall
be exempt from these regulations.
To practice bodywork therapy, or to be employed in a bodywork
establishment in the Town of Lexington, a person must possess a current
and valid permit to practice bodywork issued by the Department. The
process for obtaining a permit to practice bodywork is as follows:
A.
An application shall be obtained from the Department.
B.
The applicant shall answer every question truthfully and completely
and supply all information requested in the application. The applicant
shall submit the completed application to the Department. False statements
shall constitute grounds for denial.
C.
Applications shall be accepted throughout the year. The Department
shall make reasonable efforts act on completed permit applications
within 30 days of receipt.
D.
The applicant shall submit a certified copy of his/her birth certificate
or its equivalent to establish that the applicant is at least 18 years
of age at the time of application. The applicant shall submit a high
school diploma or its verifiable equivalent.
E.
The applicant shall be able to communicate effectively in English.
F.
The applicant shall attach to his/her application a signed passport
type photograph taken within the preceding 12 months.
G.
The applicant shall provide satisfactory evidence of being appropriately certified in accordance with § 155-158, the definition of "certification."
H.
The applicant shall provide proof of coverage by an individual professional
liability insurance policy of at least $1,000,000 per occurrence and
at least $1,000,000 aggregate.
I.
The applicant shall complete a release of Criminal Offender Record
Information (CORI) and a release of Sexual Offender Registry Information
(SORI) to the Department.
J.
The applicant shall disclose the circumstances surrounding any of
the following:
K.
The applicant shall submit a nonrefundable application fee with his
or her application. The fee will be determined by the Board of Health.
An application is not considered complete unless accompanied by the
applicable fee.
L.
The application shall be sworn to and signed by the applicant under
the pains and penalties of perjury and be notarized by a Notary Public
of the Commonwealth of Massachusetts.
M.
All documents submitted for the purpose of obtaining a permit become
the property of the Department and will not be returned.
To operate a bodywork establishment in the Town of Lexington,
a person must possess a current and valid permit to operate a bodywork
establishment issued by the Department. The process for obtaining
a permit to operate a bodywork establishment is as follows:
A.
An application shall be obtained from the Department.
B.
The applicant shall answer every question truthfully and completely
and supply all information requested in the application. The applicant
shall submit the completed application to the Department. False statements
shall constitute grounds for denial.
C.
Applications shall be accepted throughout the year. The Department
shall make reasonable efforts to act on completed applications within
30 days of receipt.
D.
The applicant shall include in the application copies of the permits
to practice bodywork of all therapists performing bodywork at the
establishment. To obtain a permit, an establishment shall have at
least one duly permitted body worker employed at all times.
E.
The applicant is responsible for ensuring all persons performing
bodywork in his/her establishment are permitted by the Department.
F.
The applicant shall submit a nonrefundable application fee with the
application. The fee will be determined by the Board of Health. An
application is not considered complete unless accompanied by the applicable
fee.
G.
The application shall be sworn to and signed by the applicant under
the pains and penalties of perjury and be notarized by a Notary Public
of the Commonwealth of Massachusetts.
H.
All documents submitted for the purpose of obtaining a permit become
the property of the Department and will not be returned.
I.
The applicant shall provide the name or names of individuals that
are currently certified in basic cardiopulmonary resuscitation (CPR)
and a copy of their valid certification form. One individual trained
in CPR shall be on-site at all times during operating hours.
A.
All permits expire on the 31st day of December each year.
B.
Permit holders intending to renew a current permit shall submit the
appropriate renewal application(s) provided by the Department along
with the applicable fee, as determined by the Board of Health, before
the 31st day of December.
C.
Any permits not renewed by the 31st day of December shall be administratively
revoked.
D.
Administratively revoked permits may be subject to a reinstatement
fee, as determined by the Board of Health.
E.
Administratively revoked permits may be reinstated upon meeting all
renewal requirements.
F.
A permit shall be considered retired if not renewed for more than
12 months. A retired permit may not be renewed; an initial permit
application must be submitted to the Department.
G.
Permits are nontransferable.
H.
No replacement permits will be issued.
I.
All permit holders shall notify the Department of a change of name
and/or address within 30 days of such change.
J.
All permits shall be displayed on the premises in a location that
is conspicuous, open, and obvious to all people entering the establishment.
A.
Bodywork establishment.
(1)
All new establishments initially permitted after the effective
date of these regulations must contain a waiting area for clients
within the establishment.
(2)
All establishments shall have a sink for hand washing immediately
available at all times. Such sink shall be supplied with hot water
between 110° F. and 130° F., hand soap, and hand drying provisions.
(3)
All establishments shall comply with the zoning requirements
and bylaws of the Town of Lexington.
(4)
The establishment, and any facilities or equipment contained
therein, including any showers, table showers and sinks, shall at
all times meet the requirements of the Lexington Fire Department and
the Lexington Building Commissioner.
(5)
Bodywork may be conducted only in adequately lighted, heated
and ventilated rooms, which are so constructed that they can be kept
clean. Floors, walls, ceilings and windows must be kept free of dust,
soil, and other unclean substances.
(6)
All equipment, furniture, linens and supplies used in the performance
of bodywork shall be maintained in a safe and sanitary manner.
(7)
A written plan describing sanitation measures must be submitted
by the applicant to the Department for any bodywork that entails disrobing
and/or draping, use of oils or lotions, and/or use of a massage-type
of table.
(8)
If any latex-containing products are used, a sign shall be conspicuously
posted alerting all clients that latex-containing products are in
use.
(9)
All establishments shall be responsible for the acts of all
therapists and other employees working at that establishment.
B.
Bodywork therapist.
(1)
A therapist may only perform bodywork at the permitted establishment
listed on his/her permit to practice bodywork. Therapists may provide
services off-site for single events, such as health fairs and demonstrations,
or in the homes of clients who are medically homebound, as documented
by a health care professional.
(2)
All therapists shall maintain a sufficient level of personal
cleanliness and wear clothing that is clean, as determined by the
Department.
(3)
All therapists shall be properly clothed, within the bounds
of decency and propriety.
A.
Hours of operation for any establishment shall be limited to 7:00
a.m. to 10:00 p.m., both inclusive.
B.
There shall be a person in charge who must be present in the establishment
at all times, who shall be so designated by the operator.
C.
Not including clients and exempt professionals, only permit holders
may be present or employed in an establishment during operation.
D.
There shall be at least one bodywork therapist present in the establishment
at all times of operation.
E.
All permit holders shall notify the Department of any criminal complaint
brought against him/her within seven days.
F.
No false statements or information shall be presented to the Department,
or any agent thereof.
G.
No alcoholic beverages may be served in any bodywork establishment.
H.
No therapist in a bodywork establishment may be unclothed.
I.
No therapist shall provide bodywork therapy services on a client
when a communicable disease will be spread through the bodywork process.
All therapists must practice safe work-related procedures in accordance
with universal precautions, Occupational Safety and Health Administration
(OSHA) standards, and the established guidelines of their profession.
J.
No room or section of a bodywork establishment shall be used as a
bedroom or for sleeping or domicile.
A.
Sexual activity by any person or persons in any establishment is
prohibited.
B.
As used in these regulations, "sexual activity" means any direct
or indirect physical contact or communication by any person or between
persons which is intended to erotically stimulate either person or
both or which is likely to cause such stimulation and includes: sexual
intercourse, fellatio, cunnilingus, masturbation (or "hand release"),
or anal intercourse. For the purpose of these regulations, "masturbation"
means the manipulation of any body tissue with the intent to cause
sexual arousal. As used herein, sexual activity may involve the use
of any device or object and is not dependent on whether penetration,
orgasm, or ejaculation occurs.
A.
Establishments and therapists shall be mindful of professional ethics
when placing advertisements. As used in this section, advertisements
shall include, but not be limited to, service offerings or promotions
in or on newspapers, periodicals, television, radio, any form of print
media, or any form of Internet or web-based marketing.
B.
Any person who is not permitted in the manner described herein may
not represent him/herself as being a permitted or licensed bodywork
therapist or to hold him/herself out to the public as being permitted
or licensed by using a title on signs, mailboxes, address plates,
stationery, announcements, telephone listings, calling cards, or other
instruments of professional identification or advertisements of any
sort.
C.
Unless all bodywork therapists within the establishment possess individual
permits to practice bodywork in the Town of Lexington, any person
operating a bodywork establishment may not present his/her establishment
as a permitted or licensed bodywork establishment or to hold his/her
establishment out to the public as being permitted or licensed by
using a title on signs, mailboxes, address plates, stationery, announcements,
telephone listings, calling cards, or other instruments of professional
or advertisements of any sort.
D.
The use of aliases is prohibited. If the therapist or establishment
operator wishes to use a name other than that which appears on a permit,
both names must be used together in all advertising and representations.
A.
Establishments and therapists are subject to inspections by the Department
or its authorized agent(s) during all times of operation.
B.
The purpose of inspections is to verify compliance with these regulations.
C.
Denial of access to an agent of the Department shall result in the
immediate administrative revocation of the permit to operate a bodywork
establishment.
E.
If, upon inspection, conditions are found that do not comply with
the standards and requirements set forth in these regulations, a reinspection
may be necessary to ensure corrective action was taken to achieve
compliance with these regulations. A reinspection fee, as determined
by the Board of Health, shall be issued to the operator.
A.
Orders.
(1)
Upon a finding by the Director or the Department that a permit
holder has violated any provision of these regulations, the Director
or the Department may order both the operator and any bodywork therapist
responsible for violating these regulations to correct any violation
of the provision of these regulations.
(2)
Orders shall be in writing and served on the permit holder(s)
as follows:
B.
Hearings.
(1)
Upon a finding by the Director or the Department that a permit
holder has violated any provision of these regulations, the Director
or the Department may order both the operator and any bodywork therapist
responsible for violating these regulations to attend a hearing with
the Board of Health.
(2)
The Board of Health may take any of the following actions, separately
or in any combination, which is deemed appropriate for the offense:
(3)
The person to whom any order or notice has been issued pursuant
to violations of any provision of these regulations may request a
hearing before the Board of Health. Such request shall be in writing
and shall be filed with the Department within five working days of
receipt of the order or notice. Upon receipt of such request, the
Department shall inform the petitioner thereof in writing of the time
and place of said hearing, which shall be commenced within a reasonable
time.
(4)
At the hearing, the petitioner shall be given an opportunity
to be heard, to challenge the inspection findings, and/or to show
why the order should be modified or rescinded, or why the permit should
not be suspended or revoked. Any oral testimony given at a hearing
shall be recorded electronically and shall be part of the permit holder's
file.
(5)
After the hearing, the Board of Health shall make a final decision
based upon the complete hearing record and shall inform the petitioner
in writing of the decision. If the Board sustains or modifies an order,
it shall be carried out within the time period allotted in the original
order or in the modification.
(6)
Every notice, order, decision or other record prepared by the
Department or Director in connection with the hearing shall be entered
as a matter of public record in the Department.
(7)
Any person aggrieved by the final decision of the Board of Health
may seek relief in a court of competent jurisdiction.
A.
Criminal penalties. Under Massachusetts General Laws (MGL), Chapter
111, § 31, any person who violates any provision of these
regulations shall, upon conviction, be fined not more than $1,000
for violation of these regulations. Each day's failure to comply with
an order of the Department shall constitute a separate offense.
B.
Noncriminal penalties. Under Massachusetts General Laws (MGL), Chapter
21D, § 40, a civil penalty of $50 may be assessed at the
discretion of the Director, the Department or the Board of Health
for violation(s) of these regulations.
A.
The Board of Health may vary the application of any provision of
these regulations with respect to any particular case, when, in the
Board's opinion, the enforcement thereof would do manifest injustice,
provided that the decision shall not conflict with the intent and
spirit of these regulations.
B.
A request for a variance shall be submitted in writing. The Board
of Health may ask for supporting evidence in order to consider the
variance request. The request shall not be deemed complete until all
such requested evidence has been received by the Department.
C.
Any variance granted under this section may be subject to qualification,
revocation, suspension, or expiration. A variance granted may be revoked,
modified, or suspended in whole or in part, only after the holder
thereof has been notified in writing and has been given an opportunity
to be heard in accordance with these regulations.
D.
Any variance granted by the Board of Health shall be in writing.
A copy of any such variance, while it is in effect, shall be available
to the public at all reasonable hours at the Department. A copy of
the variance shall also be on file in the usual place of practice
of the applicant.
If any section, subsection, sentence, clause, phrase, heading,
or any portion of these regulations is for any reason held invalid
or unconstitutional by any court of competent jurisdiction, such provisions
and such holding shall not affect the validity of the remaining portions
thereof.
