Powers of the NC Board of Massage and Bodywork

Re: Advisory Opinion; Powers of North Carolina Board of Massage and Bodywork Therapy; N.C. Gen. Stat. §§ 90-620 et seq.

Dear Mr. Wilkins:

You have requested an advisory opinion on behalf of the North Carolina Board of Massage and Bodywork Therapy (the “Board”) concerning two issues not addressed in our opinion dated March 15, 2000, and one issue requiring further clarification. The questions that you have addressed to this office are the following:

(1)

Can the Board require a massage and bodywork therapy school, which it approves, to have a guaranty bond?

(2)

Can the Board charge a reasonable fee for its approval and auditing of massage and bodywork therapy schools?

(3)

What are the distinctions and legal requirements of “licensing” a massage and bodywork therapy school versus “approving” a massage and bodywork therapy school?

As you are undoubtedly aware, the Board was created by the North Carolina General Assembly in the North Carolina Massage and Bodywork Therapy Practice Act (the “Act”), N.C. Gen. Stat. §§ 90-620 et seq. (1999), in response to the General Assembly’s recognition that the improper practice of massage and bodywork therapy is potentially harmful to the public. N.C. Gen Stat. §§ 90-621, 90-625(a) (1999). Among other things, the Act gives the Board the responsibility of overseeing the licensure of massage and bodywork therapists and the approval of massage and bodywork therapy schools. N.C. Gen. Stat. §§ 90-626, 90-629, 90-631 (1999).

So as to enable the Board to carry out these responsibilities, the Act gives the Board the power to “[a]dopt, amend or repeal any rules necessary to carry out the purposes of [the Act] and the duties and responsibilities of the Board, including rules related to the approval of massage and bodywork therapy schools. . .” N.C. Gen. Stat. § 90-626(9) (1999). In addition, the Act gives the Board the power to “[e]stablish reasonable fees” for the services provided by the Board. N.C. Gen. Stat. § 90-626(8) (1999). Consequently, it is our opinion that the Act gives the Board the power to charge a reasonable fee for its auditing and approval of massage and bodywork therapy schools.

We do not, however, interpret the Act to give the Board the power to require massage and bodywork therapy schools to post a guaranty bond as a condition of approval. The Act provides that the “Board shall establish rules for the approval of massage and bodywork therapy schools.” N.C. Gen. Stat. § 90-631. These rules must include curriculum standards, standards for faculty and learning resources, requirements for reporting changes in instructional staff and curriculum, and a description of the process used by the Board to approve a school, and the Board is required to approve any applicant school meeting its criteria. N.C. Gen. Stat. § 90-631 (1999). Neither this section, nor any other provision of the Act, however, authorizes the Board to impose a bonding requirement as a condition of approval. It is our opinion that the posting of a guaranty bond may be required only upon appropriate authorization by the North Carolina General Assembly. See, e.g., N.C. Gen. Stat. § 115D-95 (bond expressly required of proprietary schools); see also N.C. Gen. Stat. § 12-3.1 (legislative grant of authority to agency to make and promulgate rules shall not be construed as grant of authority to establish by rule a fee or charge for rendering of any service or fulfilling of any public duty without express provision for such authority). Therefore, in the absence of such express authority, it is our opinion that the Board lacks the power to require the posting of such a bond.

Your third question inquires as to the difference between “licensing” a school and “approving” a school. The obtaining of a license is a requirement to engage lawfully in the activity. See generally Black’s Law Dictionary 919-20 (6th ed. 1990). For example, the Act provides that a person “shall not practice or hold out himself or herself to others as a massage and bodywork therapist” without receiving a license to engage in massage and bodywork therapy from the Board. N.C. Gen. Stat. § 90-623(a) (1999) (emphasis added). Therefore, had the Board been delegated the authority to “license,” as opposed to “approve,” massage and bodywork therapy schools, such schools could not provide instruction in massage and bodywork therapy without first receiving a license from Board.

The “approving” of a massage and bodywork therapy school, however, is not a prerequisite to its legal operation, but merely signifies the Board’s consent to accept the instructional classroom hours of students at these schools who are applying for licensure as a massage and bodywork therapist. See N.C. Gen. Stat. § 90-629(4) (applicants for licensure as massage and bodywork therapists must have completed a minimum of 500 classroom hours of supervised instruction at a Board-approved school). A school can teach massage and bodywork therapy without the Board’s approval, but its students will not receive credit for classroom hours of instruction at that school when applying for a license. As a result, a school has an incentive to obtain approval from the Board if it wants to attract students intending to become licensed massage and bodywork therapists in North Carolina.

The legal requirements of “licensing” an entity and “approving” an entity are each statutory in nature and, therefore, vary according to the statutes at issue.

Compare, e.g., N.C. Gen. Stat. § 110-85 et seq. (detailed statutory requirements for licensing of child care facilities) with N.C. Gen. Stat. § 131E-100 et seq. (limited statutory requirements for licensing of nursing homes). As indicated above, the approval of massage and bodywork therapy schools is governed by the Act, which contains general guidelines, but few specific criteria, for obtaining such approval. Instead, the General Assembly authorized the Board to establish rules related to the approval — but not licensing — of massage and bodywork schools. Therefore, the legal requirements of “approving” massage and bodywork therapy schools are to be established by the Board within the guidelines set forth in the Act .

We hope that this advisory opinion is of assistance to the Board.

Signed by:

Grayson G. Kelley Senior Deputy Attorney General

Thomas J. Ziko Special Deputy Attorney General

Donald R. Esposito, Jr. Assistant Attorney General