Business Impact Analysis - AMENDED

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Business Impact Analysis - AMENDED

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Business Impact Analysis - AMENDED
Agency Name: State Medical Board Regulation/Package Title: Massage Therapy Continuing Education Rule Number(s): 4731-1-24

Date: March 9, 2017
Rule Type: X New Amended

5-Year Review Rescinded

The Common Sense Initiative was established by Executive Order 2011-01K and placed within the Office of the Lieutenant Governor. Under the CSI Initiative, agencies should balance the critical objectives of all regulations with the costs of compliance by the regulated parties. Agencies should promote transparency, consistency, predictability, and flexibility in regulatory activities. Agencies should prioritize compliance over punishment, and to that end, should utilize plain language in the development of regulations.
Regulatory Intent
1. Please briefly describe the draft regulation in plain language. Please include the key provisions of the regulation as well as any proposed amendments.
In 2014 the Medical Board was given statutory authority to establish rules requiring massage therapists to complete continuing education for renewal. The proposed rule sets out the massage therapy license renewal requirements and the continuing education requirement,

including the types of acceptable continuing education courses and providers. It also contains the required provisions concerning licensees who are in the armed forces.
2. Please list the Ohio statute authorizing the Agency to adopt this regulation.
The rule is authorized by Sections 4731.05 and 4731.155, Ohio Revised Code. It also implements Section 5903.10, Ohio Revised Code.
3. Does the regulation implement a federal requirement? Is the proposed regulation being adopted or amended to enable the state to obtain or maintain approval to administer and enforce a federal law or to participate in a federal program? If yes, please briefly explain the source and substance of the federal requirement.
No, it does not.
4. If the regulation includes provisions not specifically required by the federal government, please explain the rationale for exceeding the federal requirement.
Not applicable.
5. What is the public purpose for this regulation (i.e., why does the Agency feel that there needs to be any regulation in this area at all)?
Continuing education is the standard for licensed professions in order to have the licensee remain abreast of new developments in the profession and to enhance current knowledge. The American Massage Therapy Association – Ohio Chapter has long lobbied for the initiation of a continuing education requirement for Ohio massage therapists in order to enhance the professional standing of massage therapists in Ohio.
The proposed rule notifies licensees, prospective licensees, educators, and the public about the processes and procedures for meeting the continuing education requirement as part of the renewal of the license.
6. How will the Agency measure the success of this regulation in terms of outputs and/or outcomes?
The success of the rule will be measured by the number of massage therapy licensees who comply with the rule and anecdotal evidence of generally improved massage therapy practices.
Development of the Regulation
7. Please list the stakeholders included by the Agency in the development or initial review of the draft regulation. If applicable, please include the date and medium by which the stakeholders were initially contacted.

The proposed rule was initially developed based upon the feedback received from the efforts to promulgate the rule in 2015 and with the input of the Massage Therapy Advisory panel. The advisory panel is made up of licensed massage therapists including those who own their business or who are employed massage therapists. However, massage therapy educators, representatives of massage therapy businesses, and other massage therapists routinely called into and participated in the telephone conferences scheduled to discuss the proposed rule. Telephone conferences were held on December 7, 2015 and February 22, 2016.
Once the rule was formulated, it was sent via email on March 11, 2016, to all licensed massage therapists for whom the Medical Board has email addresses, members of the massage therapy advisory panel, the American Massage Therapy Association – Ohio Chapter, approved massage therapy training programs in Ohio, the Council of Massage Therapy Schools, Ohio State Medical Association, Ohio Osteopathic Association, various professional organizations in the medical area, attorneys who appear before the Medical Board, and all other parties who have indicated an interest in rule activity by the Medical Board.
AMENDMENT: Numerous comments were received on the proposed rule filed with CSI in 2016. Based on the comments and CSI input, the Medical Board determined that amendments to the proposal should be made. The Massage Therapy Advisory panel met via telephone conference on February 2, 2017.
8. What input was provided by the stakeholders, and how did that input affect the draft regulation being proposed by the Agency?
The massage therapy advisory panel was instrumental in the inclusion of “self-care” and business courses as acceptable coursework and in ensuring a full range of approved providers. There was disagreement among the panel members and other participants as to the appropriate number of credit hours to require.
Comments received from interested parties and licensees included support of the draft rule by the American Massage Therapy Association – Ohio Chapter. Other comments included a desire to be able to complete the continuing education coursework completely via home study courses; a request that the self-care course work not be limited to that which has direct application to the practice of massage therapy; comments that the required 24 hours is too many; there should not be a requirement for human trafficking awareness courses; there should be a waiver of continuing education requirements based upon age; the providers should be more than just the association and schools; instructors should earn continuing education credit for creating the courses; CPR/First Aid should be required; continuing education credit should be given for presentations to professional organizations or authoring

a book or paper relating to massage therapy practice; and live webinars should be an a accepted form.
The Medical Board carefully reviewed all comments received and re-affirmed the language of the rule as proposed. Of particular interest: the Medical Board did not increase the number of acceptable home study courses beyond the proposed 10 hours because it believes that life-long learning should involve live interactions with course instructors, which is not available via home study coursework. The proposed rule does not, however, limit the reliance on distance learning coursework.
The commenter who suggested that the requirement that “self-care” courses not have to be directly related to massage therapy provided examples of courses that should be considered. The listing included nutrition, meditation, yoga, tai chi, and other courses that address the mental and spiritual health as well as the physical health of the massage therapist. The Medical Board determined that as currently drafted the proposed language of paragraph (E)(1)(b) allows the licensee to earn credit for courses that facilitate the licensee’s continued provision of massage therapy, including the types of courses the commenter suggested.
The Medical Board also re-affirmed that twenty-four credit hours of continuing education every two years should be required. The decision was made based upon the statistics maintained by the Associated Body-Workers and Massage Professionals, which reflects that nineteen of the states that require continuing education for licensure renewal require at least twenty-four credit hours; fourteen require less. Also, the National Certification Board for Therapeutic Massage and Bodywork requires twenty-four hours of continuing education credit.
The requirement for continuing education courses to include human trafficking awareness training reflects the provisions of Section 4743.07, Ohio Revised Code.
The Medical Board believes the proposed rule provides a wide-range of acceptable providers that go extensively beyond just massage therapy schools and associations, and that it allows for a variety of learning options.
AMENDMENT: On February 2, 2017, the summary of comments received at CSI and the Medical Board staff’s suggested amendments to reflect them were shared with the Massage Therapy Advisory panel and others on the telephone conference. Some participants in the advisory committee telephone conference objected to the decrease in the number of required hours to less than twenty-four and to the addition of the FSMTB as an approver and/or provider of continuing massage therapy education.
 The objections voiced about the decrease in hours included that the majority of states that require continuing education require at least twenty-four hours and that the effort to have

massage therapy recognized as a medical service will be enhanced by having that degree of continuing education. However, the Medical Board understands that the justification for twenty-four hours included in the original BIA does not overcome the adverse impact on the small businesses through which most massage therapists provide services.
 The objection to the inclusion of the FSMTB as an approver and/or provider of continuing education was voiced as being that because FSMTB has not yet produced continuing education courses or approved courses there has been no review of the quality of the courses. However, the FSMTB is an organization for state massage therapy licensing agencies. Its work is performed and/or overseen by regulators of massage therapy providers. The Medical Board firmly believes that the courses approved and/or presented by the FSMTB will be appropriately vetted to ensure acceptable quality.
9. What scientific data was used to develop the rule or the measurable outcomes of the rule? How does this data support the regulation being proposed?
The requirement for human trafficking awareness training is based upon the State of Ohio policy that emphasizes such awareness in all segments of society. See Section 4743.07, Ohio Revised Code. The determination of the number of hours of credit required and types of acceptable coursework areas was based on extensive research of requirements by other states and associations in the massage therapy profession. The requirement for courses in Ohio law and ethics is based upon the fact patterns for situations brought to the Medical Board’s attention by way of complaints filed against massage therapists.
10. What alternative regulations (or specific provisions within the regulation) did the Agency consider, and why did it determine that these alternatives were not appropriate? If none, why didn’t the Agency consider regulatory alternatives?
If Ohio massage therapists are to be required to complete continuing medical education as a condition of licensure renewal, the requirements must be set out in rule. See Section 4731.155, Ohio Revised Code. In 2015, the Medical Board first proposed language for this rule that was withdrawn based upon numerous negative comments received. This proposed language reflects many of the comments received in 2015.
11. Did the Agency specifically consider a performance-based regulation? Please explain. Performance-based regulations define the required outcome, but don’t dictate the process the regulated stakeholders must use to achieve compliance.
The rule is performance-based. It states the licensure expiration chart, provides numerous options for the licensee to meet the requirement of completing continuing education, and sets

out the procedure for late renewal of a license and extension of the continuing education period for licensees in the armed forces.
12. What measures did the Agency take to ensure that this regulation does not duplicate an existing Ohio regulation?
The Medical Board is the only agency that licenses and regulates massage therapists.
13. Please describe the Agency’s plan for implementation of the regulation, including any measures to ensure that the regulation is applied consistently and predictably for the regulated community.
All licensed massage therapists, approved massage therapy schools, and the American Massage Therapy Association – Ohio Chapter will receive notice of the rule via email. Notice will also be included in the e-newsletter that goes to all licensees. Medical Boar staff members will be available to answer questions. Guidance documents will be developed to explain the rule.
Adverse Impact to Business
14. Provide a summary of the estimated cost of compliance with the rule. Specifically, please do the following: a. Identify the scope of the impacted business community; The impacted business community is composed of licensed massage therapists. b. Identify the nature of the adverse impact (e.g., license fees, fines, employer time for compliance); and The nature of the adverse impact is the payment of course registration. c. Quantify the expected adverse impact from the regulation. The adverse impact can be quantified in terms of dollars, hours to comply, or other factors; and may be estimated for the entire regulated population or for a “representative business.” Please include the source for your information/estimated impact.
The registration fee will vary depending on the subject matter, number of credit hours awarded, and other variances. Examples include the following:
Manual Therapy and Self-care Techniques: $219 for 6 credit hours (See
Numerous on-line courses ranging from $15 to $60 for a variety of credit hours:

ACE Massage Cupping, level 1: $120 for 12 credit hours. (See
15. Why did the Agency determine that the regulatory intent justifies the adverse impact to the regulated business community?
Continuing education is the standard for licensed professions in order to have the licensee remain abreast of new developments in the profession and to enhance current knowledge. Anecdotal information and information provided in complaints file with the Medical Board indicate a need for massage therapists to engage in life-long learning.
Regulatory Flexibility
16. Does the regulation provide any exemptions or alternative means of compliance for small businesses? Please explain.
No. Most massage therapists provide care in a small business. Clients/patients may be harmed by improperly performed massage therapy. It is important that all massage therapists enhance their knowledge and keep abreast of new developments in the profession.
17. How will the agency apply Ohio Revised Code section 119.14 (waiver of fines and penalties for paperwork violations and first-time offenders) into implementation of the regulation?
The rule is not applicable to a business but to the individual licensee. It is the policy of the State of Ohio that continuing education for massage therapists is needed to facilitate public protection. Therefore, protecting the public requires enforcement of the continuing education requirements.
18. What resources are available to assist small businesses with compliance of the regulation?
An FAQ document will be created and circulated to licensees, massage therapy schools, and associations. Medical Board staff will be available to answer questions, as well.
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