20:76:01:01.  Definitions. Terms defined in SDCL chapter 36-35 have the same meaning when used in this article. In addition, terms used in this article mean:

          (1)  "Applicant," any person seeking initial licensure or renewal of a license with the board.

          Source: 33 SDR 50, effective September 21, 2006.

          General Authority: SDCL 36-35-24(1).

          Law Implemented: SDCL 36-35-24.

          20:76:01:02.  Application. The applicant must obtain an application from the board, complete it legibly, and submit the application with the application fee. The executive secretary may return an incomplete application. An applicant shall verify under the penalties of perjury that all the information submitted by the applicant is true and correct. An applicant who submits an application by use of the internet agrees that submission of the application serves as the applicant's signature and verification of the information of the application. An applicant must notify the board if another state has disciplined the applicant with a reprimand, censure, suspension, temporary suspension, probation, revocation, or refusal to renew a license. The applicant may be required to clarify, expand, or provide additional information to fully evaluate all qualifications. If the applicant does not meet the requirements, the executive secretary shall write a letter of explanation. The applicant may return the application and ask that it be submitted for board action. An applicant shall submit the declarations page issued by the applicant's malpractice carrier with any application for initial license and renewal.

          Source: 33 SDR 50, effective September 21, 2006; 37 SDR 29, effective August 30, 2010.

          General Authority: SDCL 36-35-24(1).

          Law Implemented: SDCL 36-35-12.

          20:76:01:03.  Notification. The executive secretary shall notify an applicant of the board's approval or disapproval of the application. If the application is not approved, the applicant shall be given the reasons. The board shall take final action upon any application no later than six months after submission.

          Source: 33 SDR 50, effective September 21, 2006; 37 SDR 29, effective August 30, 2010.

          General Authority: SDCL 36-35-24(1).

          Law Implemented: SDCL 36-35-24.

          20:76:01:04.  Denial. In addition to a failure to meet any qualification in SDCL 36-35-12, the board may deny an application based on grounds stated in SDCL 36-35-13.

          Source: 33 SDR 50, effective September 21, 2006.

          General Authority: SDCL 36-35-24(1).

          Law Implemented: SDCL 36-35-12, 36-35-13

          20:76:01:05.  Expiration. Repealed.

          Source: 33 SDR 50, effective September 21, 2006; repealed, 37 SDR 29, effective August 30, 2010.

          20:76:01:06.  Required training. An applicant for licensure as a massage therapist shall provide an education verification form completed by the school and official transcripts evidencing that the applicant has completed the required classroom training. The board may consider other evidence of training if the school has ceased operations. The required training is as follows:

          (1)  One hundred twenty-five hours of training in the body's systems and anatomy, physiology, and kinesiology;

          (2)  Two hundred hours of training in massage and bodywork assessment, theory, and application;

          (3)  Forty hours of training in pathology;

          (4)  Ten hours total of training in business and ethics, with a minimum of six hours in ethics; and

          (5)  One hundred twenty-five hours of additional training in an area or related field that theoretically completes a massage program of study.

          Fifty minutes of supervised classroom instruction is equal to one hour of training.

          Source: 34 SDR 332, effective July 9, 2008; 37 SDR 29, effective August 30, 2010.

          General Authority: SDCL 36-35-12(4), 36-35-24(2).

          Law Implemented: SDCL 36-35-12.

          20:76:02:01.  Remittance of fees. Any fee shall be remitted to the board in the form of a personal check, cashier's check, certified check, or money order made payable to the state of South Dakota. The board may not take any action on any application for licensure or renewal until the fee is received.

          Source: 33 SDR 50, effective September 21, 2006; 34 SDR 101, effective October 22, 2007.

          General Authority: SDCL 36-35-17, 36-35-24.

          Law Implemented: SDCL 36-35-24.

          20:76:02:02.  License fee schedule. The license fee schedule is as follows:

          (1)  License fee, $65;

          (2)  Annual license renewal fee, $65;

          (3)  Inactive license fee, $65;

          (4)  Application fee, $100.

          Source: 33 SDR 50, effective September 21, 2006; 34 SDR 101, effective October 22, 2007; 38 SDR 105, effective December 8, 2011.

          General Authority: SDCL 36-35-17, 36-35-18.1, 36-35-24(3).

          Law Implemented: SDCL 36-35-17, 36-35-18.1, 36-35-24(3).

          20:76:03:01.  Definitions. Terms used in this chapter mean:

          (1)  "Contact hour," a minimum of 50 minutes of presentation or participation;

          (2)  "Electronic means," educational activities obtained via the internet, such as self-study courses and audio/video tapes, with formal testing and passing scores recorded.

          Source: 33 SDR 50, effective September 21, 2006; 37 SDR 29, effective August 30, 2010.

          General Authority: SDCL 36-35-24(2).

          Law Implemented: SDCL 36-35-19.

          20:76:03:02.  Requirements. Repealed.

          Source: 33 SDR 50, effective September 21, 2006; repealed, 34 SDR 101, effective October 22, 2007.

          20:76:03:03.  Verification. Upon license renewal, a licensee shall verify under the penalties of perjury that all contact hour information, which shall be submitted in the form of copies of the certificates of completion, is true and correct. A licensee who submits a renewal form by use of the internet shall also agree that submission of the renewal form serves as the licensee's signature and verification of the information on the renewal form. The licensee must supply sufficient detail to permit audit verification if notified by the board of an audit.

          Source: 33 SDR 50, effective September 21, 2006; 34 SDR 101, effective October 22, 2007.

          General Authority: SDCL 36-35-24(2).

          Law Implemented: SDCL 36-35-19.

          20:76:03:04.  Qualifying activities. A qualifying activity is any course with a clear purpose and objective which maintains, improves, or expands the skills and knowledge relevant to massage therapy of the human body. Qualifying activities must meet the definition of massage therapy pursuant to § 36-35-1(2) or be education presented by an approved provider of the National Certification Board for Therapeutic Massage and Bodywork or American Medical Massage Association, or both. College courses must replicate the required licensing coursework. An academic semester credit equals 15 contact hours and a quarter credit equals 10 contact hours. CPR certification from a national credentialing organization is accepted.

          Source: 33 SDR 50, effective September 21, 2006; 37 SDR 29, effective August 30, 2010; 38 SDR 105, effective December 8, 2011.

          General Authority: SDCL 36-35-24(2).

          Law Implemented: SDCL 36-35-19.

          20:76:03:05.  Record keeping. The licensee shall maintain records to support credits claimed. These records must be maintained for two years after the date of renewal. A licensee shall keep the following records:

          (1)  A brochure or flyer showing the type of activity, sponsoring organization, location, duration, instructor's or speaker's name, and contact hours earned; and

          (2)  Attendance verification records in the form of completion certificates or other documents supporting evidence of attendance.

          Source: 33 SDR 50, effective September 21, 2006; 34 SDR 101, effective October 22, 2007.

          General Authority: SDCL 36-35-24(2).

          Law Implemented: SDCL 36-35-19.

          20:76:03:06.  Audits. Repealed.

          Source: 33 SDR 50, effective September 21, 2006; repealed, 34 SDR 101, effective October 22, 2007.

          20:76:03:07.  Continuing education compliance. Upon failure to comply with continuing education requirements, the licensee has 90 calendar days after receipt of written notice of noncompliance to further reinforce the claim of contact hours or to acquire sufficient contact hours to meet the requirements. The board may take into consideration hardship or extenuating circumstances in allowing correction of deficiencies, but the deadline may not be extended more than one year.

          Source: 33 SDR 50, effective September 21, 2006; 34 SDR 101, effective October 22, 2007.

          General Authority: SDCL 36-35-24(2).

          Law Implemented: SDCL 36-35-19.

          20:76:04:01.  Complaints. Any person, including a board member or the executive secretary, claiming that a holder of a license, or an applicant for licensure under SDCL chapter 36-35, has engaged in or is engaged in conduct constituting grounds for disciplinary action as enumerated in SDCL chapter 36-35 may file a written complaint with the board. The board may require the complaining party to file a complaint verified on oath stating the name of the applicant or licensee against whom the complaint is made and setting out full details of the conduct which is alleged to be a violation. Failure to file a written complaint, verified under oath, in the form satisfactory to the board, is a basis to dismiss the complaint. On receipt of a complaint deemed to be in proper form by the board or the executive secretary, the complaint shall be served by mail upon the applicant or licensee complained against and upon any other affected parties, together with a copy of SDCL chapters 36-35 and 1-26.

          The applicant or licensee complained against shall respond to the complaint within 20 calendar days after service of the complaint on the applicant or licensee. The response of the applicant or licensee shall be sent to the executive secretary of the board at the board's office. Upon receipt of the response of the applicant or licensee, or upon expiration of the time for the applicant or licensee complained against to respond, the president of the board, considering only the complaint and any response, shall appoint one member of the board who, along with the executive secretary and such other individuals as may be appointed by the president of the board, to act as an investigative committee to determine if the complaint has merit and constitutes grounds for disciplinary action, or is frivolous and should be dismissed. Licensees must notify the board within 30 days if another state has disciplined them with a reprimand, censure, suspension, temporary suspension, probation, revocation, or refusal to renew a license.

          Source: 33 SDR 50, effective September 21, 2006.

          General Authority: SDCL 36-35-24(4).

          Law Implemented: SDCL 36-35-22.

          20:76:04:02.  Complaint procedure. Upon completion of the investigation, the investigating committee shall recommend to the board whether the charges should be dismissed for lack of merit or whether based upon the investigation of the committee there is sufficient basis to proceed with either a formal or an informal hearing or other disposition. The failure of a licensee to comply with the investigation request administered by the board may result in disciplinary action. The board may also petition the court of the county in which the individual licensee resides, and the court may enter an order compelling the compliance or imposing such terms and conditions as the court may deem necessary.

          Source: 33 SDR 50, effective September 21, 2006.

          General Authority: SDCL 36-35-24(4).

          Law Implemented: SDCL 36-35-22.

          20:76:04:03.  Informal proceedings. If the board considers an alleged violation to have merit constituting grounds for disciplinary action, the board, at its sole discretion, with the consent of the licensee, may proceed with informal proceedings and stay formal proceedings pending the outcome of the informal proceedings. The board may conduct informal proceedings with the affected parties to resolve the matter without a formal hearing.

          Informal proceedings do not preclude the board from reinstating formal proceedings. An applicant or licensee, prior to accepting a final disposition through an informal proceeding, can reject or decline informal proceedings and elect to proceed with a formal hearing. An applicant or licensee consenting to an informal proceeding waives all rights to disqualify a board member from participating in a subsequent formal hearing by reason of the board member's participation in the informal proceeding consented to by the applicant or licensee.

          The board may accept an assurance of voluntary compliance or a consent order regarding a violation of SDCL chapter 36-35. The assurance or consent order shall be in writing and is subject to the approval of the board. The assurance or consent order may include a statement that the applicant or licensee will not engage in such act or practice in the future and one of the following:

          (1) Stipulation for voluntary payment of any fine or cost, or both, of the investigation; and

          (2)  Stipulation for the voluntary payment necessary to restore to any person money or property which may have been acquired by the alleged violator.

          The assurance of voluntary compliance may not be considered an admission to a violation for any purpose. The consent of the licensee to a consent order in informal proceedings constitutes an admission of a violation for any purpose. Proof of the failure to comply with an assurance of voluntary compliance or a consent order entitles the board to institute or reinstitute formal proceedings.

          The board shall notify in writing any complaining party, the applicant or licensee complained against, and any other affected parties of the results of the informal proceedings and the action taken, if any. The final disposition of an informal proceeding is a public record.

          Source: 33 SDR 50, effective September 21, 2006.

          General Authority: SDCL 36-35-24(4).

          Law Implemented: SDCL 36-35-22.

          20:76:04:04.  Formal proceedings. If an alleged violation has merit constituting grounds for disciplinary action, the board may commence formal proceedings. Formal proceedings shall be instituted by a formal board complaint and service of a notice of hearing by mail upon the applicant or licensee complained against.

          Source: 33 SDR 50, effective September 21, 2006.

          General Authority: SDCL 36-35-24(4).

          Law Implemented: SDCL 36-35-22.

          20:76:04:05.  Contents of a formal board complaint. The formal board complaint shall include the name of the applicant or licensee complained against, and a statement setting forth the nature of the violations being charged that constitute grounds for disciplinary action.

          Source: 33 SDR 50, effective September 21, 2006.

          General Authority: SDCL 36-35-24(4).

          Law Implemented: SDCL 36-35-22.

          20:76:04:06.  Answer to formal board complaint. Repealed.

          Source: 33 SDR 50, effective September 21, 2006; repealed, 38 SDR 177, effective April 26, 2012.

          20:76:04:07.  Disqualification. If an alleged violation against a licensee is filed by a board member, or if a board member participates in the investigation of a violation by the licensee, that board member is disqualified from sitting at the hearing as a board member and from participating in the decision rendered by the board.

          Source: 33 SDR 50, effective September 21, 2006.

          General Authority: SDCL 36-35-24(4).

          Law Implemented: SDCL 36-35-22.

          20:76:04:08.  Procedure for formal hearing. The following procedure shall be used by the board in conducting formal hearings:

          (1)  The board shall provide written notice to the applicant or licensee by mail stating the time, place, and date of the formal hearing. The notice shall require the attendance of the applicant or licensee at the hearing. The notice shall be given at least ten days prior to the formal hearing;

          (2)  A transcript shall be kept of all formal hearings and proceedings;

          (3)  The board president may conduct the formal proceeding or the board may have a hearing examiner conduct the proceedings in part or in full;

          (4)  The applicant or licensee appearing before the board at a formal hearing shall appear in person, unless otherwise waived by the board. The applicant or licensee, and legal counsel, may be present during the giving of all evidence, may have reasonable opportunity to inspect all documentary evidence, may examine and cross-examine witnesses, may prevent evidence in support of the party's interest, and may have subpoenas issued to compel attendance of witnesses and production of evidence on the party's behalf.

          Source: 33 SDR 50, effective September 21, 2006.

          General Authority: SDCL 36-35-24(4).

          Law Implemented: SDCL 36-35-22.

          20:76:04:09.  Final action by board. After a formal hearing, the board may decide to dismiss the formal complaint, revoke the registration license of the licensee, suspend the registration license of the licensee, place the licensee on probation, or issue a letter of reprimand to be placed in the file of the applicant or licensee. The board's decision shall be made and entered with notice of the decision given in accordance with the provisions of SDCL 1-26-23 to 1-26-25, inclusive.

          Source: 33 SDR 50, effective September 21, 2006.

          General Authority: SDCL 36-35-24(4).

          Law Implemented: SDCL 36-35-22.

          20:76:04:10.  Petition for hearing by an aggrieved person. In a contested case, as it is defined in SDCL 1-26-1(2), including disciplinary proceedings, a person aggrieved by an action of the board taken without a hearing may, within 30 days following the date of the board action, petition the board for a hearing. The hearing shall be held not later than 60 days following receipt of the petition. Twenty (20) days before the date set by the board for hearing, the board shall serve by mail upon the petitioner and other interested or affected parties a copy of the notice of hearing and a copy of the aggrieved person's petition.

          Source: 33 SDR 50, effective September 21, 2006.

          General Authority: SDCL 36-35-24(4).

          Law Implemented: SDCL 36-35-22.

          20:76:05:01.  Minimum limits. A licensee shall carry malpractice or professional liability insurance, with a company with a certificate of authority from the South Dakota Division of Insurance, with limits of no less than $250,000 per occurrence. A licensee shall notify the board of any change of carrier occurring after a license or renewal is granted.

          Source: 33 SDR 50, effective September 21, 2006.

          General Authority: SDCL 36-35-24(5).

          Law Implemented: SDCL 36-35-12, 36-35-21.

          20:76:06:01.  Inactive license. An inactive license has no expiration date and can be activated by paying the current license fee and providing proof of at least eight hours of continuing education acceptable to the board in the two-year period preceding the activation request.

          Source: 34 SDR 101, effective October 22, 2007; 37 SDR 29, effective August 30, 2010; 38 SDR 105, effective December 8, 2011.

          General Authority: SDCL 36-35-18.1, 36-35-24(3).

          Law Implemented: SDCL 36-35-18.1, 36-35-24(3).

          20:76:07:01.  Examination. An applicant for licensure shall provide official evidence of passing an examination provided by one of the following organizations:

          (1)  National Certification Board for Therapeutic Massage and Bodywork;

          (2)  American Medical Massage Association; or

          (3)  Federation of State Massage Therapy Boards.

          Source: 37 SDR 29, effective August 30, 2010.

          General Authority: SDCL 36-35-12(7).

          Law Implemented: SDCL 36-35-12(7).

          20:76:08:01.  Recognized facilities. The board may license an applicant who has completed the training required by § 20:76:01:06 from the following South Dakota facilities until July 1, 2014, at which time the facility shall be accredited pursuant to § 20:76:08:02:

          (1)  Black Hills Health & Education Center;

          (2)  Headlines Academy;

          (3)  National American University;

          (4)  Pam's Massage School;

          (5)  SD School of Massage Therapy;

          (6)  Sioux Falls Therapeutic Massage & Education Center; and

          (7)  Springs Bath House School of Massage.

          Source: 38 SDR 177, effective April 26, 2012.

          General Authority: SDCL 36-35-12, 36-35-24(2).

          Law Implemented: SDCL 36-35-12(3), 36-35-24(2).

          20:76:08:02.  Facilities that may be recognized by the board. The board may accept an applicant's training required by § 20:76:01:06 from a facility not recognized pursuant to § 20:76:08:01 if the facility provides official evidence it meets at least one of the following criteria:

          (1)  The facility is licensed or approved by the state board of massage therapy where that training facility is located;

          (2)  The facility is accredited by one of the following:

               (a)  Commission on Massage Therapy Accreditation (COMTA);

               (b)  Accrediting Council for Independent Colleges and Schools (ACICS);

               (c)  National Accrediting Commission of Career Arts & Sciences (NACCAS);

               (d)  Accrediting Council for Continuing Education and Training (ACCET);

               (e)  Accrediting Commission of Career Schools and Colleges (ACCSCT);

               (f)  Accrediting Commission of the Distance Education and Training Council (DETC); or

               (g)  Higher Learning Commission (HLC).

          The board may recognize a facility that holds other accreditations. However, the training that allows an applicant to take a national examination does not require the board to recognize the facility as nationally accredited.

          Source: 38 SDR 177, effective April 26, 2012.

          General Authority: SDCL 36-35-12, 36-35-24.

          Law Implemented: SDCL 36-35-12(3), 36-35-24(2).

          20:76:08:03.  Foreign-trained applicants. An applicant trained in a foreign country shall have graduated with training required by § 20:76:01:06 and shall bear the expense to provide an equivalency evaluation of their educational credentials from the International Educational Research Foundations, Inc - Credentials Evaluation Service.

          Source: 38 SDR 177, effective April 26, 2012.

          General Authority: SDCL 36-35-12, 36-35-24.

          Law Implemented: SDCL 36-35-12, 36-35-24.

          Reference: International Educational Research Foundations, Inc - Credentials Evaluation Service, P.O. Box 3665, Culver City, CA 90231-3665, (310) 258-9451, www.ierf.org.