Complaints And Discipline

Link to law: http://arcweb.sos.state.or.us/pages/rules/oars_300/oar_334/334_040.html
Published: 2015

The Oregon Administrative Rules contain OARs filed through November 15, 2015

 

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BOARD OF MASSAGE THERAPISTS

 


DIVISION 40
COMPLAINTS AND DISCIPLINE

334-040-0001
Complaints
(1) Every licensee having information
regarding a possible violation of the rules or statutes governing massage must cooperate
with the Board in furnishing such information and must assist the Board, in order
that appropriate investigative, corrective or disciplinary action may be taken.
(2) Anyone may submit a complaint
against a licensed or unlicensed person. A complaint may be submitted anonymously.
Complainants are kept confidential.
(3) A preliminary review of
the complaint must be made by the Board or its representative, to assure there is
sufficient evidence to justify proceeding to investigate and to determine if the
allegations against the Respondent are such that, if proven, could result in disciplinary
action being imposed by the Board.
(4) If the complaint is considered
to be valid, the Board must then proceed as follows:
(a) The Board or its representative
may notify the Respondent of the allegations by mail and request written response.
Written responses must be received by the Board within two weeks after the notification
was first mailed, unless an extension is authorized by the Board. In the event no
written response is received the Board may evaluate the complaint using available
evidence; or
(b) The Board or its representative
may refer the complaint to the Board's designated authority for additional investigation.
(5) The Board must evaluate
all evidence obtained; including any documents or comments received from the Respondent
and the Board must proceed as follows:
(a) If the evidence is insufficient
to justify further proceedings, the Complainant and Respondent must be so notified
in writing.
(b) If the evidence is sufficient
to justify further proceedings, the Board must consider and take appropriate action
at a regular or special meeting.
Stat. Auth.: ORS 687.081 &
687.121

Stats. Implemented: ORS 687.011,
687.051, 687.057, 687.061, 687.081, 687.086 & 687.121

Hist.: BMT 1-2009, f. 2-13-09,
cert. ef. 3-1-09; BMT 4-2011, f. 12-1-11, cert. ef. 1-1-12
334-040-0010
Discipline
The Board may deny, conditionally grant,
restrict, suspend or revoke a license or permit, impose probation, reprimand, censure,
impose remedial education or corrective actions, and/or impose a civil penalty for
any of the following reasons:
(1) Practicing massage or
representing one's self as a massage therapist without a current active license
issued by the Board;
(2) Knowingly or recklessly
making any false statement to the Board;
(3) Has been the subject
of disciplinary action as a licensed healthcare professional by this or any other
state or territory of the United States or by a foreign country and the Board determines
that the cause of the disciplinary action would be a violation under ORS 687.011
to 687.250, 687.895 and 687.991 or OAR Chapter 334;
(4) Suspension or revocation
of a license to practice massage in another jurisdiction based upon acts by the
licensee similar to acts described in this section;
(5) Knowingly or recklessly
falsifying an application or continuing education statement or documentation;
(6) Conviction of a crime
in any state or jurisdiction;
(7) The use of false, deceptive,
or misleading advertising, which includes but is not limited to, advertising massage
using the term “massage” or any other term that implies a massage technique
or method in any private or public communication or publication by a person licensed
or not licensed by the Board as a massage therapist;
(8) Allowing the use of a
license by an unlicensed person;
(9) Presenting as one's own
license, the license of another;
(10) Practicing massage under
a false or assumed name without notification to the Board;
(11) Impersonating another
massage therapist;
(12) Assisting, employing,
or permitting an unlicensed person to practice massage;
(13) Practicing or purporting
to practice massage when the license has been revoked or suspended, lapsed or inactive;
(14) Practicing or offering
to practice massage beyond the scope permitted by law;
(15) The use of intoxicants,
drugs, controlled substances, or mind altering substances to such an extent as to
impair or potentially impair the licensee's abilities to perform professional duties
in a safe manner;
(16) Practicing massage with
a physical or mental impairment that renders the therapist unable or potentially
unable to safely conduct the practice of massage;
(17) Failing to keep the
equipment and premises of the massage establishment in a clean and sanitary condition
as required by rules of the Board;
(18) Refusing to permit the
Board or its representatives to inspect the business premises of the licensee during
regular business hours;
(19) Failing to cooperate
with the Board in any licensing action or disciplinary proceeding, including but
not limited to:
(a) Failure to furnish any
requested papers or documents,
(b) Failure to provide in
writing a full and complete explanation covering the matter contained in the complaint
filed with the Board,
(c) Failure to respond to
subpoenas issued by the Board whether or not the recipient is accused in the proceeding;
(20) Failing to comply with
an order issued by the Board;
(21) Failure to obtain the
required permits for facilities or in violation of OAR 334-010-0010.
(22) Failure to report to
the Board information that a licensee has engaged in prohibited or unprofessional
conduct as required in ORS 676.150.
(23) Unprofessional or dishonorable
conduct which includes but is not limited to:
(a) Any conduct involving
inappropriate physical contact or sexual misconduct which includes:
(A) Sexual abuse which is
conduct which constitutes a violation of any provision of ORS 163.305 through 163.465;
(B) Sexual violation which
is sex between the LMT and the client, whether initiated by the client or not, engaging
in any conduct with a client that is sexual, or may be reasonably interpreted as
sexual, including, but not limited to:
(i) Sexual intercourse;
(ii) Genital to genital contact;
(iii) Oral to genital contact;
oral to anal contact;
(iv) Oral to oral contact
except cardiopulmonary resuscitation; touching breasts or genitals or any sexualized
body part for any purpose other than appropriate examination or treatment or where
the client has refused or withdrawn consent; or
(v) Encouraging the client
to masturbate in the presence of the LMT or masturbation by the LMT while the client
is present.
(C) Sexual impropriety which
is any behavior, gestures, or expressions that are seductive or sexually demeaning
to a client; inappropriate procedures, including, but not limited to,
(i) Disrobing or draping
practices that reflect a lack of respect for the client's privacy, deliberately
watching a client dress or undress instead of providing privacy for disrobing;
(ii) Subjecting a client
to an examination in the presence of students, assistants, or other parties without
the explicit consent of the client or when consent has been withdrawn;
(iii) An examination or touching
of genitals;
(iv) Inappropriate comments
about or to the client, including but not limited to, making sexual comments about
a client's body or clothing, making sexualized or sexually-demeaning comments to
a client, comments on the client's or LMT’s sexual orientation and making
a request to date;
(v) Initiation by the LMT
of conversation regarding the sexual problems, preferences or fantasies of the LMT;
or
(vi) Kissing.
(b) Violating the client’s
rights of privacy, and confidentiality.
(c) photographing or filming
the body or any body part or pose of a client without consent.
(d) Failure to disclose or
release information about a client if required by law or on written consent of client.
(e) Intentionally harassing,
abusing, or intimidating a client either physically or verbally.
(f) Any conduct or practice
which could endanger the health or safety of a client or the public.
(g) Any conduct or practice
which impairs the massage therapist’s ability to safely and skillfully practice
massage.
(h) Exercising undue influence
on a client, including promotion or sale of services, goods, or appliances in such
a manner as to exploit the client for the financial gain or self-gratification of
the massage therapist.
(i) Routinely practicing
in an incompetent manner.
(j) Conduct which would also
constitute a violation of the Oregon Unlawful Trade Practices Act.
(k) Practicing a modality
or technique without adequate training or licensure.
Stat. Auth.: ORS 687.081 & 687.121
Stats. Implemented: ORS 687.011,
687.051, 687.057, 687.061, 687.081, 687.086 & 687.121
Hist.: MTB 1-1990, f. &
cert. ef. 4-20-90; MTB 1-1992, f. & cert. ef. 7-28-92; Sections (6) - (20)(h)
Renumbered from 334-030-0020; BMT 2-1998, f. & cert. ef. 7-22-98; Renumbered
from 334-030-0025 by BMT 1-2009, f. 2-13-09, cert. ef. 3-1-09; BMT 4-2011, f. 12-1-11,
cert. ef. 1-1-12; BMT 2-2012, f. 12-4-12, cert. ef. 1-1-13; BMT 1-2013, f. 5-31-13,
cert. ef. 7-1-13; BMT 2-2013, f. 11-26-13, cert. ef. 1-1-14; BMT 1-2015, f. 3-12-15,
cert. ef. 7-1-15

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