New Jersey Division of Consumer Affairs

NEW JERSEY REGISTER
VOLUME 36, NUMBER 22
MONDAY, NOVEMBER 15, 2004
RULE ADOPTION
LAW AND PUBLIC SAFETY
DIVISION OF CONSUMER AFFAIRS
NEW JERSEY BOARD OF NURSING
MASSAGE, BODYWORK AND SOMATIC THERAPY EXAMINING COMMITTEE

Adopted Amendment: N.J.A.C. 13:37-5.5 Proposed: October 20, 2003 at 35 N.J.R. 4819(a).

Filed: October 20, 2004 as R.2004 d.432, with substantive and technical changes not requiring additional public notice and comment (see N.J.A.C. 1:30- 3.6).
Authority: N.J.S.A. 45:11-67.
Effective Date: November 15, 2004.
Expiration Date: January 13, 2005.

The official comment period ended December 19, 2003. The Board received 308 comments from the following individuals:

13. Munn Eic, ABMP, AMTA, NCBTMB, Director, Massage Therapy Program, Berdan Institute

50. Barb Richmond, Director of Community Relations, The Upledger Institute, Inc.

75. Kristine Lindahl, Director of Education , Laban/Bartenieff Institute of Movement Studies

80. Ronald Diana, International Massage Association, Somerset School of Massage Therapy

85. Sheryl Markley, New Jersey Physical Therapy Association, American Physical Therapy Association, Associated Bodywork & Massage Professionals, CranioSacral Therapy Association, Zero Balancing Health Association, Intl Alliance of Allied Healthcare Professionals

90. Richard G. Griswold, Executive Director, Board of Cosmetology and Hairstyling

95. Charlie Behm, Chairperson, NJ Coalition of Massage, Bodywork & Somatic Therapies

98. Dana Cartin, PT, Director of Government Relations, American Physical Therapy Association

103. Arlene Farmer, MA, RN, Instructional Designer, Lincoln Educational Services, Inc.

1. COMMENT: Many commenters expressed approval of the regulations and the certification of massage, bodywork and somatic therapists. They believe that the proposal is a positive development for legitimizing massage professionals and that massage therapy professionals need to have regulations.

RESPONSE: The Committee thanks the commenters for their support and points out that N.J.S.A. 45:11-67 requires the Committee to adopt regulations.

2. COMMENT: One commenter commends the Committee for its attention to consumer protection.

3. COMMENT: One commenter argues that it will be good to be certified since it will set a therapist apart from those who are not certified.

RESPONSE: The Committee recognizes that certification will differentiate between massage therapists who are certified by the State and those who are not.

4. COMMENT: One commenter appreciates the work of the Committee, but believes that more focus groups among practitioners should be conducted and that the challenging and punitive tone of the regulations should be changed.

RESPONSE: The Committee thanks the commenter for her support, but does not agree that focus groups should be conducted. These rules were drafted based upon the expertise of the Committee and in the interest of protecting consumer interests. The use of practitioner focus groups in drafting these rules is unnecessary. The Committee also disagrees that the rules have a punitive tone. The rules set forth standards for practice for certificants. The rules do, however, include disciplinary standards which may be imposed when a certificant violates the rules.

5. COMMENT: One commenter contends that it is important for the regulations to include a statement encouraging the public to take advantage of massage and indicating that massage is a viable complement to traditional medicine. The commenter believes this is appropriate as it would reflect similar statements made in P.L. 1999, c.19.

RESPONSE: It is inappropriate for rules to contain such language. The Committee rules deal with standards for certificants and the Committee.

6. COMMENT: One commenter suggests that the Committee review regulations from other states. The commenter believes that the proposed regulations were developed without any reflection on what is done in other states. The commenter contends that there was little thought given to the impact these regulations would have on massage therapy and that some of the regulations are in direct conflict with the National Certification Board for Therapeutic Massage and Bodywork (NCBTMB) codes of ethics.

RESPONSE: The commenter's contention that these rules were developed without consideration of other states and that little thought was given to the impact of these rules is incorrect. The Committee spent a great deal of time considering how the rules would impact both massage, bodywork and somatic therapists and the public. As the commenter did not indicate how these rules conflict with NCBTMB code of ethics, the Committee cannot respond specifically except to say that it does not believe that there is any such conflict. The Committee points out that, while it considered the standards set by many national organizations including the American Massage Therapy Association (AMTA), NCBTMB, the Associated Bodywork and Massage Professionals (ABMP), the National Certification Commission for Acupuncture and Oriental Medicine (NCCAOM), the American Organization for Bodywork Therapies of Asia (AOBTA) and others, it is not required to follow any of the standards developed by the national organizations. The Committee is required to follow the dictates of the Act, P.L. 1999, c.19 (N.J.S.A. 45:11-53 et seq.).

7. COMMENT: One commenter suggests that the comment period be extended by 60 days since so few massage therapists are aware of the proposal.

RESPONSE: N.J.S.A. 52:14B-4 requires an agency to provide a 30-day period during which it will accept comments regarding proposed rules. The Committee extended this 30-day comment period to sixty days pursuant to N.J.A.C. 1:30- 3.3(a)5. The Committee does not believe it is necessary to extend the comment period beyond this 60-day period, particularly since the volume of the comments received indicates that a large number of massage therapists were aware of the proposal.

8. COMMENT: One commenter is concerned that all massage therapists working in New Jersey did not have the opportunity to review the proposal and respond to it. The commenter contends that she was on the State notification list, but was never sent a copy of the proposal.

RESPONSE: Every individual and organization that is on the Committee's list of interested parties was sent a copy of the proposal. The proposal was published in the New Jersey Register, sent to the State House Press Corps and posted on the Committee's website. The Committee points out that it would not be possible to send the proposal to every massage therapist working in New Jersey because the Committee has no way of knowing every massage therapist practicing in the State.

9. COMMENT: One commenter contends that the phrase "massage, bodywork and somatic therapies" should be changed throughout the proposal to "massage, bodywork or somatic therapies."

RESPONSE: The phrase "massage, bodywork and somatic therapies" is used throughout N.J.S.A. 45:11-53 et seq. and it is the phrase that the Committee must use in its rules.

10. COMMENT: One commenter contends that the phrase "American Oriental Bodywork Therapist Association" should be changed to "American Organization for Bodywork Therapies of Asia."

RESPONSE: The Committee agrees that the phrase "American Organization for Bodywork Therapies of Asia" is the correct phrase and has amended N.J.A.C. 13:37-16.11 upon adoption to reflect this.

11. COMMENT: One commenter claims that the regulations cater to a limited special interest group, AMTA. The commenter contends that the regulations do not recognize other legitimate groups and programs. The commenter contends that the education of bodyworkers is varied and that it is unacceptable that the AMTA is allowed to control the entire bodywork and energy work service industry.

RESPONSE: The Committee does not believe that these rules cater to any special interest group. The Committee agrees that the education massage, bodywork and somatic therapists receive is varied and has recognized this in these rules. The rules recognize a wide variety of massage, bodywork and somatic therapy groups including NCBTMB, NCCAOM, AMTA, AOBTA and ABMP. If the Committee becomes aware of other organizations that should be recognized in the rules, it will amend the rules to include such recognition.

12. COMMENT: One commenter asks how the Committee can think that it has the right to expect her to meet the requirements of the regulations after the years she has dedicated to being a massage therapist. The commenter asks what nurses have to do with a massage therapist's title or work. The commenter contends that an individual would need a law degree to read the regulations.

RESPONSE: The Committee neither has the authority nor the intent to require that anyone meet the requirements of these regulations. N.J.S.A. 45:11-65 specifically states that the Act does not "prohibit any person from rendering massage, bodywork and somatic therapy services" as it is a titling act. The Committee does not expect that all persons providing services will meet the requirements of these rules and only those individuals who seek certification will be required to meet all of the requirements. N.J.S.A. 45:11-56 set up the Committee under the authority of the Board of Nursing and these regulations must conform to that statutory authority. The Committee points out that the Board of Nursing is the administrative organization under which it exists and that the Board does not have control over the titles a massage, bodywork and somatic therapist uses or the work a massage, bodywork and somatic therapist performs. The Committee believes that the rules are clear.

13. COMMENT: One commenter asks why massage therapists are under the control of nurses, who are themselves under the control of doctors. The commenter asks why the Department of Health does not have jurisdiction over massage like it does in Florida. The commenter is concerned that the public will be harmed if massage therapy is burdened by individuals who are looking to increase their own revenue. The commenter claims that individuals can obtain money from insurance companies for operations on sore and clogged bodies that are not necessary when a bodyworker is allowed to work with the patient. The commenter argues that if other health professionals are concerned about losing money to massage therapists, then these professionals are operating for the wrong reasons and that they should not be cutting into a person when a massage could alleviate the pain. The commenter contends that doctors and nurses should be upset with themselves. The commenter argues that doctors and nurses are in the health profession for the wrong reason if they are unhappy that a patient can have his or her pain lessened or relieved completely due to a massage.

RESPONSE: The Committee points out that it is administratively organized under the auspices of the Board of Nursing but that nurses do not control the Committee or massage, bodywork and somatic therapists. Likewise, the Committee also points out that nurses are not under the control of doctors. The Legislature determined that the Committee and the regulation of massage, bodywork and somatic therapists would be organized within the Division of Consumer Affairs, like every other professional and occupational board or committee in New Jersey. Massage, bodywork and somatic therapists will not be "burdened by" individuals who, as the commenter claims, may be looking to increase their own revenue. The regulation of massage, bodywork and somatic therapists will be administered by the Committee, which is made up of massage, bodywork and somatic therapists. The Committee will not address the commenters unsupported contentions that other health care professionals are concerned about losing money to massage, bodywork and somatic therapists.

14. COMMENT: One commenter points out that over 2,000 individuals graduate from massage schools in New Jersey every year and question the benefit these regulations will provide.

RESPONSE: The Act and the rules were created to protect consumers in New Jersey. The benefit the Act and rules provide is that consumers are able to identify those individuals who have met the certification standards for education and practice that are set forth in the Act and the rules.

15. COMMENT: One commenter claims that certification was intended to set professionals apart from those who are engaged in the sex trade. The commenter contends that the regulations, in attempting to ferret out illegitimate activities like massage parlors, prostitutes and unqualified and uneducated massage therapists, undercut and hobble massage professionals.

RESPONSE: State certification was not created by the Legislature in order to set apart professionals from those engaged in the sex trade. Certification was created to set apart those individuals who choose to obtain certification and who have met the requirements for certification from those who choose not to obtain certification. The regulations set forth criteria that certificants must comply with in their practice. These practice standards will not undercut or hobble massage professionals.

16. COMMENT: One commenter asks if State law supersedes local ordinances that differ from the State law.

RESPONSE: The Act supersedes local ordinances whenever a local ordinance addresses subjects that are the purview of the Committee pursuant to the Act, specifically, the certification of massage, bodywork and somatic therapists and regulating the practice of certificants.

17. COMMENT: One commenter asks that every massage therapist who has graduated from a New Jersey accredited school be notified of changes in the regulations.

RESPONSE: The Committee has no way of knowing who has graduated from an accredited school. Any individual or organization that wishes to be notified of changes in the rules should contact the Committee and ask to be included on the Committee's interested parties list. The schools are also encouraged to keep students apprised of the Committee's regulations if they intend to become certified.

18. COMMENT: One commenter contends that she did not receive notification from the Committee of the proposal even though she was on the Committee's interested parties distribution list.

RESPONSE: Notification of the proposal was sent to every individual who was on the Committee's interested parties list.

19. COMMENT: One commenter asks if graduates from her school will need to apply to the Committee to obtain certification.

RESPONSE: Yes, individuals who are interested in obtaining certification must apply to the Committee; however, certification is not required in order to practice massage, bodywork and somatic therapy.

20. COMMENT: One commenter contends that the word "not" has been omitted from page 3, paragraph 4, line seven of the proposal.

RESPONSE: It appears that the commenters meant to refer to the summary of proposed N.J.A.C. 13:37-16.7. There is no such omission in the proposal as it was printed in the New Jersey Register on October 20, 2003 at 35 N.J.R. 4819(a) or as it appears on the Committee's website.

21. COMMENT: One commenter contends that the proposal will impose hardships on residents and was only drafted to provide the State with money. The commenter asks if the regulations will stop individuals from practicing outside of their education and certification requirements. The commenter contends that the only people affected by these regulations will be those who are already certified and have adequate training. The commenter contends that the Committee will have no way of finding people who are self-taught and without certification. The commenter argues that individuals seeking treatment will not go to a person who is not educated about massage and that clients will not tolerate low-grade massages. The commenter asks who will benefit from the regulations.

RESPONSE: The Committee disagrees that the proposal will impose hardships on residents. The rules will ensure that consumers will be able to easily identify qualified massage, bodywork and somatic therapists. The rules were not drafted to provide money for the State. N.J.S.A. 45:1-3.2 requires all professional boards and committees to charge fees that cover the costs of operation. Professional boards and committees are not allowed to retain funds in excess of that which is necessary to cover expenses. Fees are continually reassessed to determine if they are appropriate to raise the necessary funds and are either raised or lowered accordingly. The fees imposed by the proposal were developed by estimating the cost of operation for the Committee and by estimating the number of individuals who are expected to apply for certification. Once the Committee begins to certify individuals it will have a clearer idea as to its costs and the number of certificants and will adjust the fees at that time, if necessary. The Committee points out that individuals who choose to obtain certification are submitting themselves to the statutory and regulatory authority of the Committee. This authority prohibits individuals from practicing outside of their education, either their initial education or what they learn after obtaining certification. The Committee wishes to ensure that certificants are only using those modalities of massage, bodywork and somatic therapy that they have been educated to perform so that they do not harm consumers. There is no reason for the Committee to locate uncertified individuals. N.J.S.A. 45:11-65 states that anyone may perform massage, bodywork and somatic therapy services as long as they do not refer to themselves by the titles that are reserved for those who hold certification. The Committee does not maintain that individuals who seek massage, bodywork and somatic therapy will be looking for a knowledgeable therapist; but merely points out that a consumer will know if an individual is properly educated by determining whether or not that individual is certified. Certification is a confirmation of the therapist's ability to provide massage, bodywork and somatic therapies. The benefit of the rules will be for consumers, who will be able to verify a massage, bodywork and somatic therapist's education and qualifications, by determining whether or not the therapist is certified.

22. COMMENT: One commenter asks if there will be a possibility of licensing massage, bodywork and somatic therapists in the future.

RESPONSE: The decision to create licensure for massage, bodywork and somatic therapists, as opposed to certification that currently exists, will have to be made by the Legislature.

24. COMMENT: One commenter asks if the proposal will have any impact on registered nurses.

RESPONSE: If a nurse qualifies for certification as a massage, bodywork and somatic therapist and chooses to obtain certification, then these rules will apply to that nurse. Otherwise, the rules are not applicable. Nurses will not be able to use the terms reserved for certificants pursuant to N.J.A.C. 13:37-16.9 unless they hold certification.

25. COMMENT: One commenter argues that the proposal is unfair, especially to therapists who are not currently working.

RESPONSE: The Committee does not believe that this proposal is unfair. The proposal will only affect those individuals who choose to obtain certification. The proposal will not affect any other individuals, as long as they do not use the terms reserved for certificants pursuant to N.J.A.C. 13:37-16.9.

26. COMMENT: One commenter asks how the regulations will protect massage therapists from individuals who perform massage but are not trained to do so. The commenter contends that physical therapists, chiropractors and others identify themselves as massage therapists.

RESPONSE: The rules are not designed to protect massage, bodywork and somatic therapists. They are designed to protect consumers who use the services of massage, bodywork and somatic therapists. Pursuant to the Act, anyone may render massage, bodywork and somatic therapies but only those who are certified may use the terms reserved for certificants pursuant to N.J.A.C. 13:37-16.9.

27. COMMENT: Two commenters ask how large spas will handle uncertified massage therapists and how the Committee will deal with facialists and nail technicians that perform massage in a spa. The commenters point out that there is no mention of these massage businesses in the regulations.

RESPONSE: The Committee has no authority to determine how spas, large or otherwise, will handle uncertified individuals. Neither does it have authority over facialists or nail technicians who perform massage. The Act allows anyone to render massage, bodywork and somatic therapies so long as these individuals are not using the terms reserved for certificants pursuant to N.J.A.C. 13:37-16.9. The Committee has no authority over massage businesses, only massage, bodywork and somatic therapists which is why there was no mention of massage businesses in the rules.

28. COMMENT: One commenter asks who will make up the Massage, Bodywork and Somatic Therapy Advisory Committee and asks if it is different than the Massage, Bodywork and Somatic Therapy Examining Committee. The commenter also asks who appoints individuals to this new committee and suggests that massage therapists be included on this new committee.

RESPONSE: Reference to the "Massage, Bodywork and Somatic Therapy Advisory Committee" was a typographical error in the proposal, the term should have been "Massage, Bodywork and Somatic Examining Committee." Appointments to the Massage, Bodywork and Somatic Therapy Examining Committee are made by the Governor.

29. COMMENT: One commenter asks what is in Subchapter 15 and where can this subchapter be found.

RESPONSE: Subchapter 15 is a reserved subchapter in N.J.A.C. 13:37. There are no rules in this subchapter.

30. COMMENT: One commenter asks what happens if the regulations are violated and points out that the regulations do not set forth consequences for violations.

RESPONSE: The Uniform Enforcement Act, N.J.S.A. 45:1-14 et seq., sets forth the consequences for violations of the rules of any professional board or committee, including violations of N.J.A.C. 13:37-16.

31. COMMENT: One commenter contends that there are a number of spelling errors in the proposal.

RESPONSE: The commenter did not indicate where these alleged spelling errors are. If the Committee becomes aware that there are spelling errors in the text of the rules, it will amend the rules to correct these errors.

32. COMMENT: One commenter asks if massage schools have to register with the State and if there is a fee for this.

RESPONSE: A massage school does not have to register with the Committee; however, a massage school may have to obtain approval from the New Jersey Department of Education and any inquiry may be directed to the Department of Education.

33. COMMENT: One commenter believes that there should be high standards for certifying and regulating massage therapists.

RESPONSE: The Committee believes that it has created high standards for certifying and regulating massage, bodywork and somatic therapists.

34. COMMENT: One commenter asks if the Committee had nothing better to do than dream up P.L. 1999, c.19.

RESPONSE: The Committee did not create P.L. 1999, c.19. The Legislature enacted this law and the Committee is responsible for its implementation.

35. COMMENT: A majority of the commenters refer to the proposed regulations as "P.L. 1999, c.19," the "Act," the "law" or "legislation."

RESPONSE: The Committee points out that there is a difference between the proposed rules and the law that governs massage, bodywork and somatic therapists. "Legislation," "law," "Act" and "P.L. 1999, c.19" all refer to the Massage, Bodywork and Somatic Therapist Certification Act, N.J.S.A. 45:11-53 et seq. N.J.A.C. 13:37-16 are the rules that effectuate the provisions of the Act.

36. COMMENT: One commenter believes that the standards set by the regulations are too lax. The commenter contends that professionals need stricter requirements than the ones in the proposal. The commenter contends that massage as a body art does not take much anatomical knowledge but that massage as healthcare depends on anatomical knowledge. The commenter contends that the proposal will not result in massage therapy being recognized by insurance companies. The commenter believes that national certification is a higher level of professionalism than the State certification.

RESPONSE: The Committee disagrees that the standards are too lax. The Committee believes that the commenter's distinction between massage as a body art and massage as healthcare is artificial and that any application of massage, bodywork and somatic therapy should be based upon anatomical knowledge. These rules were not drafted to result in the recognition of massage, bodywork and somatic therapy by insurance companies. They were drafted to protect consumers who receive massage, bodywork and somatic therapy. The Committee disagrees that any national certification sets a higher standard of professionalism than State certification.

37. COMMENT: One commenter sees no difference between State certification and national certification, except for higher fees. The commenter asks if massage therapists will need to maintain national certification. The commenter contends that, if State certification was created to differentiate those individuals who pursue continuing education and hold themselves out as professionals, the State certification process has failed. The commenter argues that letters after an individuals name and paying fees means nothing unless the public is educated as to the nature of massage, bodywork and somatic therapy.

RESPONSE: The Committee believes that there is a vast difference between State certification and national certification. State certification is issued by a government to protect consumers. National certification is issued by a private organization whose motivation is the protection of certificants. Only State certificants may use the titles set forth in N.J.A.C. 13:37-16.9, national certificants who do not hold State certification may not use these titles in New Jersey. An individual's national certification status is irrelevant to State certification. The rules were drafted to establish education and practice standards. It is not the Committee's responsibility to educate the public as to certification. It is the Committee's responsibility to issue certification to those individuals who qualify and to ensure that these individuals practice in a safe and effective manner.

38. COMMENT: One commenter suggests that the State offer the choice of being either State licensed or nationally certified. The commenter contends that this is appropriate as there is no difference between the two, except that a State licensed therapist may be eligible for insurance reimbursement.

RESPONSE: There is a vast difference between State and national certification, as outlined in previous responses. An individual's national certification status is irrelevant to State certification and the Committee will not recognize national certification as a substitute for meeting the certification requirements of N.J.A.C. 13:37-16.3 and 16.4. The Committee points out that it has no authority over insurance reimbursement.

39. COMMENT: One commenter contends that there are issues that should be dealt with in the regulations such as health insurance, prescription medication, crime, fear and anger.

RESPONSE: The issues cited by the commenter are outside of the Committee's purview as articulated by the Legislature in N.J.S.A. 45:11-53.

40. COMMENT: One commenter points out that the proposed regulations do not include a section that explains the benefits of being State certified. The commenter asks how certification will help massage become more acceptable to insurance companies. The commenter also asks why a client would care if a massage therapist is certified or not.

RESPONSE: The purpose of the proposed rules is to set forth qualifications for certification and practice requirements. The rules are not intended to explain the benefits of certification. The Committee has no jurisdiction over insurance reimbursement and certification is unrelated to such reimbursement. The Committee believes that certification allows consumers to identify those individuals who have met standards established by the State to provide massage, bodywork and somatic therapies.

41. COMMENT: One commenter realizes that the regulations do not require an individual to obtain certification in order to practice massage, bodywork and somatic therapy, but contends that liability insurance will require massage therapists to conform to standards of practice in New Jersey. This standard of practice will be certification, once the regulations have been adopted.

RESPONSE: The Committee points out that it has no jurisdiction over insurance, including liability insurance. The decision whether or not to obtain certification is a decision that every massage, bodywork and somatic therapist has to make for him-or herself.

42. COMMENT: One commenter would like support to be covered by insurance companies since massage services are invaluable for the benefit of healing.

RESPONSE: Issues related to insurance reimbursement are not within the purview of the Committee.

43. COMMENT: One commenter asks how the Committee can say that the fees and regulations will not impact the massage profession. The commenter contends that many massage therapists are solo practitioners who do not charge high fees. The commenter contends that the initial fee and two-year renewal fee will be a hardship for many massage therapists, contrary to the Committee's contentions.

RESPONSE: The Economic Impact statement in the proposal did indicate that the fees imposed by the proposal will impact massage, bodywork and somatic therapists. Furthermore, the proposal indicated that the rules will impact massage, bodywork and somatic therapists. The Committee has no control over the fees a massage, bodywork and somatic therapist charges for his or her services. The Committee points out that, pursuant to N.J.S.A. 45:1-3.2, it must charge a fee that covers the expenses it incurs.

44. COMMENT: Several of the commenters claim that the fees charged pursuant to N.J.A.C. 13:37-5.5 are restrictively high. The commenters point out that they already pay fees for licensure in other states and for NCBTMB certification, continuing education, professional memberships, malpractice insurance and liability insurance. The commenters are concerned that these high fees will discourage massage therapists from obtaining certification.

RESPONSE: N.J.S.A. 45:1-3.2 requires all professional boards and committees to charge fees that cover the costs of operation. Fees are continually reassessed to determine if they are appropriate to raise the necessary funds and are either raised or lowered accordingly. The fees imposed by the proposal were developed by estimating the cost of operation for the Committee and by estimating the number of individuals who are expected to apply for certification. Once the Committee begins to certify individuals it will have a clearer idea as to its costs and the number of certificants and will adjust the fees if necessary. The Committee points out that the fees the commenters cite to are the cost of becoming a certified professional and believes that the commenter's claim that massage, bodywork and somatic therapists will be discouraged from obtaining certification because of these fees is speculative.

45. COMMENT: One commenter asks if the $75.00 application fee is included in the $120.00 fee. The commenter asks if an individual who is rejected for certification will receive a refund of the application fee.

RESPONSE: The $75.00 application fee is in addition to the $120.00 certification fee. The application fee is charged to cover the cost of processing the application and will not be refunded if an applicant is rejected.

46. COMMENT: One commenter asks if the fees include all present and future requirements such as pictures and fingerprinting.

RESPONSE: The fees set forth in N.J.A.C. 13:37-5.5 only cover the expenses of what is currently required by the rules. If new requirements are imposed in the future that result in new expenses for the Committee, the fees may need to be amended to cover those expenses.

47. COMMENT: One commenter contends that the fees for continuing education sponsors should be higher since sponsors are making money and cornering the market for continuing education in New Jersey.

RESPONSE: Pursuant to N.J.S.A. 45:1-3.2, the Committee must charge a fee that covers the expenses it incurs. The fee charged to continuing education sponsors covers the expenses the Committee will incur in processing the continuing education sponsor's application. The Committee cannot charge continuing education sponsors more just because the commenter makes an unsupported claim that these sponsors are better able to pay these fees.

48. COMMENT: One commenter argues that requiring continuing education sponsors to pay a fee will place an unfair financial burden on massage therapists who will bear the cost of these fees.

RESPONSE: N.J.S.A. 45:1-3.2 requires the Committee to charge a fee that covers the costs it incurs.

49. COMMENT: Two commenters were concerned with the inactive fee. The commenters want to see the Committee set an inactive fee now and not later. They suggest that the inactive fee be set at 25 percent of the active fee. The commenters ask that certificants be allowed to resume active status easily and suggest that the Committee require a maximum of 24 continuing education hours and a minimum of 250 hours of clinical practice over the past three years.

RESPONSE: The Division of Consumer Affairs is currently reviewing this issue to determine what every board and committee should charge those in an inactive status. Once the Division has made this determination, the Committee will propose an inactive fee. The procedure for return to active status from inactive status is set forth in N.J.A.C. 13:37-16.6(h). That rule states that the Committee may permit a certificant to return to active status provided the applicant completes continuing education requirements and the applicant holds certification in Basic Life Support.

50. COMMENT: One commenter contends that the fees should be half of the amount proposed and that the Committee does not need to take in much money considering their activities. The commenter asks what studies were done to justify this fee structure.

RESPONSE: N.J.S.A. 45:1-3.2 requires the Committee to charge a fee that covers the cost it incurs. The fees were determined after an analysis was performed by the Division of Consumer Affairs financial officer.

51. COMMENT: One commenter questions why the Committee requires posting of certificates at off-site locations and charges $35.00 for copies of certificates. The commenter questions why it would cost so much to copy a certificate.

RESPONSE: The Committee requires that a certificate be posted to ensure that consumers will be able to verify that an individual is certified. The copy of the certificate is not a photocopy. The certificate issued by the Committee is a newly issued duplicate certificate from the central licensing division. The fee charged is the cost involved in issuing the certificate by the State entity and the Committee has no control over that fee.

52. COMMENT: One commenter claims that the AMTA website stated that there would be a different fee for a person who holds a certificate as a chiropractor's assistant or chiropractor's assistant for massage. The commenter asks why there are different fees for these individuals and asks why this is not posted on the Committee's website.

RESPONSE: The information the commenter claims to have found on the AMTA site is incorrect. The fees will be the same for all applicants. The Committee points out that individuals should be getting their information from the Committee, not from outside sources.

53. COMMENT: Several commenters contend that the regulations were only proposed as a way to make money and that the fee schedule is exorbitant. They are concerned because they do not know what justifies these fees.

RESPONSE: These regulations were proposed to effectuate the certification and regulation of massage, bodywork and somatic therapists pursuant to the Act, N.J.S.A. 45:11-65 et seq. N.J.S.A. 45:1-3.2 prohibits the Committee from charging more than it needs to meet the costs it incurs.

54. COMMENT: One commenter points out that it costs $220.00 for membership in AMTA each year, that NCBTMB costs $200.00 for renewal and that each course costs anywhere from $100.00 to $600.00.

RESPONSE: The Committee has not investigated the fees charged by these private organizations, so it does not dispute the commenter's claim that these are the fees charged. The fees charged by private organizations are unrelated to the fees the Committee must charge in order to pay for its expenses.

55. COMMENT: One commenter agrees that a distinction should be made between illegal sex workers and legitimate massage therapists, but points out that the proposed fee is 10 times greater than the fee paid in New York.

RESPONSE: These rules were not drafted to differentiate between illegal sex workers and legitimate massage, bodywork and somatic therapists. These rules were drafted to effectuate the certification and regulation of massage, bodywork and somatic therapists. The Committee points out that New York charges $100.00 for licensure; this amount is $20.00 less than the fee proposed by the Committee.

56. COMMENT: One commenter argues that the high fees are troublesome considering the lack of value provided to certificants under the regulations.

RESPONSE: The Committee charges the fees necessary to cover its costs. The Committee points out that these rules were not drafted to provide certificants with value but to protect consumers who avail themselves of the services of certificants.

57. COMMENT: One commenter contends that the regulations must restrict the use of all the permutations of the term "massage" to certificants. The commenter contends that the Committee has done a woefully poor job of enforcing these regulations since they were enacted in 1999. The commenter demands that the Committee enforce these regulations in the future. The commenter contends that some schools are telling their graduates that they can call themselves "certified massage therapists" based on their diploma.

RESPONSE: The Committee points out that N.J.S.A. 45:11-65 sets forth the terms that are reserved solely for certificants. This statute does not reserve all permutations of the term "massage" to certificants and, absent such statutory authority, the Committee cannot restrict the use of the term "massage" as the commenter suggests. The Committee points out that these rules did not exist in 1999. The commenter obviously meant to contend that the Committee has not enforced the Act, which was enacted in 1999. The Committee could not enforce the Act until rules that effectuated the provisions of the Act were adopted. The Committee will enforce the Act now that these rules have been adopted. The Committee points out that the rules preclude someone from calling themselves "certified massage therapists" unless they are certified by the Committee.

58. COMMENT: One commenter contends that N.J.A.C. 13:37-16.1 should state that these regulations apply to all persons engaged in the massage business. If they are not applied to all, the regulations will only be a burden for certificants.

RESPONSE: N.J.S.A. 45:11-65 specifically states that "nothing in this Act shall be construed to prohibit any person from rendering massage, bodywork and somatic therapy services." This statute prohibits the Committee from amending N.J.A.C. 13:37-16.1 as the commenter suggests.

59. COMMENT: One commenter argues that making certification voluntary and failing to control the use of the terms "massage," "massage therapy" or "therapeutic massage" to a professional environment is a disservice to everyone. The commenter will not pay the certification fee because he believes his scope of practice will be restricted by certification while uncertified individuals may practice as they wish.

RESPONSE: N.J.S.A. 45:11-65 makes certification voluntary and does not control the use of the terms "massage," "massage therapy" or "therapeutic massage" to the extent the commenter suggests is appropriate. The Committee points out that this statute does not require that any one obtain certification, so the commenter need not obtain certification or pay the certification fee as long as he does not use any of the titles reserved to certificants pursuant to N.J.A.C. 13:37-16.9. The Committee also points out that certification entails the State's imprimatur and indicates that a certificant is recognized by the State as a professional who will conduct his or her practice in a professional and safe manner. The practice of certificants will be restricted to the extent that consumer safety requires such restrictions so that consumers can be reasonably sure that those who are recognized by the State as professionals are practicing safely and effectively. Each therapist is free to choose whether they will be certified by the Committee or not and the advantages and/or disadvantages of being certified.

60. COMMENT: One commenter is concerned with the blurred lines in the designations of the different therapies. The commenter is concerned that this blurriness could start a turf war like those that have affected other professions and asks that the regulations clarify the distinctions between the designations of different therapies.

RESPONSE: The Committee is not in a position to make such distinctions due to the nature of massage, bodywork and somatic therapies and the frequent overlap between modalities. These regulations were drafted to recognize that many modalities have such overlap and that the massage, bodywork and somatic therapy community does not recognize clear distinctions between different modalities. N.J.A.C. 13:37-16.7 allows a certificant to practice any modality that the certificant is educated to perform.

61. COMMENT: Some of the commenters ask if the Committee will prohibit individuals from using the NCBTMB designation and the term "nationally certified" if they have passed the national certifying examination. One commenter argues that a therapist who has graduated from an approved school and has passed the NCBTMB examination should be allowed to use the term "certified massage therapist" and should only be prohibited from using the term "State certified." The commenters also ask if individuals will be required to pay fees to both NCBTMB and the Committee.

RESPONSE: An individual who is certified by a national organization will be permitted to indicate this certification, as long as they clearly indicate by what organization they are certified by and do not indicate that they are State certified if they are not certified by the Committee. The term "certified massage therapist" is reserved for certificants pursuant to N.J.S.A. 45:11- 65 and only individuals who are certified by the Committee may use this term. The Committee does not require that certificants pay fees to NCBTMB or any other national organization.

62. COMMENT: Several commenters point out that N.J.A.C. 13:37-16.1 does not include the terms "massage therapist," "MT" or "bodyworker." The commenters contend that these terms are commonly used, that their absence will cause confusion and that they should be included.

RESPONSE: These terms are not included in N.J.S.A. 45:11-65 or 45:11-66 and the Committee, therefore, cannot include them in N.J.A.C. 13:37-16.1.

63. COMMENT: One commenter asks why there are so many confusing designations. The commenter contends that the public would not learn these designations and asks who is helped by having so many different designations.

RESPONSE: The designations that are listed in N.J.A.C. 13:37-16.1 and 16.9 are those terms that are recognized by the Legislature pursuant to N.J.S.A. 45:11-65 and 45:11-66. The Committee is required to recognize these terms in rules. The Committee does not believe that the public will be confused by these designations.

64. COMMENT: One commenter asks if a massage therapist who is not certified by the State, but is certified in a specific modality such as myofascial or craniosacral, can use the terms "certified myofascial" or "certified craniosacral therapist."

RESPONSE: These terms are not prohibited by N.J.S.A. 45:11-65 and the certification issued by the Committee pursuant to N.J.S.A. 45:11-53 et seq. does not provide for certification of specialties such myofascial or craniosacral. An individual who is not certified by the State may use these terms. The Committee points out that anytime the term "certified" is used by an individual who is not State certified, there is a possibility that it could cause confusion for consumers. Clearly identifying what is meant when the term "certified" is used will benefit consumers who are attempting to find State certified massage, bodywork and somatic therapists.

65. COMMENT: One commenter asks if a massage therapist who is not certified by the State can use the term "massage therapist" on a business card.

RESPONSE: The term "massage therapist" is not included in N.J.S.A. 45:11-65 or 45:11-66 and may be used by individuals who are not certified by the Committee.

66. COMMENT: One commenter points out that the term "CST" can refer to certified craniosacral therapist. The commenter asks if a person who is a certified craniosacral therapist may use the term "CST" if they are not certified by the State.

RESPONSE: The term "CST" could stand for "certified somatic therapist," a reserved title and therefore cannot be used unless the individual is certified by the Committee.

67. COMMENT: One commenter points out that many individuals use the term "massage therapist" and that, if the Committee does not allow them to use this term, these individuals will call themselves "body rubbers," which the Committee does not want.

RESPONSE: The term "massage therapist" is not reserved for certificants by statute; uncertified individuals may use this term. The Committee has no control over the terms that uncertified individuals use as long as they do not use the terms reserved for certificants pursuant to N.J.A.C. 13:37-16.1 and 16.9.

68. COMMENT: One commenter argues that the Committee should not prohibit individuals who are not certified by the State from using the term "certified" in their title. The commenter points out that there are many practicing massage therapists who are nationally certified and asks if such therapists will have to stop referring to themselves as certified. The commenter is disturbed that therapists who have been previously responsible for their credentials will be affected by an arbitrary decision on the part of the Committee to control these individuals through its State certification "whims."

RESPONSE: As stated above, the Committee will not prohibit an individual from indicating that they are nationally certified as long as the individual indicates which organization has certified them and does not incorrectly indicate that they are State certified. The decision by the Committee is not arbitrary, it is based upon the legislative intent evidenced in N.J.S.A. 45:11-65 and 66.

69. COMMENT: Several commenters suggest that the Committee exclude energy body workers who practice Qi Gong, Integrated Therapy, Reiki and Bowen from the regulations. The commenters point out that the regulations do not specifically mention Reiki, but that their wording could be interpreted as including Reiki. The commenters argue that energy workers would not be eligible for certification because they deal with mind-body healing. The commenters believe that the education requirements in the regulations are not appropriate for energy workers. The commenters point out that Reiki takes only a day to learn and that master status in Reiki can take between two days and a year. The commenters argue that energy workers do not manipulate the body, apply pressure or do any invasive procedures. The commenters state that Reiki practitioners do not look for signs of physical injuries or disease and therefore do not need knowledge of anatomy or physiology. The commenters argue that requiring energy workers to spend hundreds of hours in a classroom would be wasted time and would encourage some energy workers to believe that they can diagnose and treat. The commenters ask the Committee to define what therapies fall into the somatic category and to amend the education requirements if energy workers are included in the definition of "somatic."

RESPONSE: The Committee points out that no one is required to meet its certification requirements. Certification is voluntary for any individual who provides massage, bodywork and somatic therapy services, including those individuals who perform energy bodywork. The Committee also points out that, if energy workers were specifically exempted from these regulations, then no energy worker could ever obtain certification. The Committee points out that knowledge of anatomy and physiology is not required so that certificants can identify physical injuries or diseases. It is required so that certificants have the knowledge to safely and effectively provide massage, bodywork and somatic therapy services. No certificant may diagnose or treat, and the Committee does not believe that meeting the certification requirements in any way encourages an individual to diagnose or treat. The Committee does not believe it is necessary or appropriate to define the modalities that fall into somatic therapy. The Act and these rules treat massage, bodywork and somatic therapy as one professional practice which should not be divided into separate categories. The Committee will not amend the education requirements for certification as these requirements are the same for all certificants and are based on statutory requirements.

70. COMMENT: One commenter argues that Reiki can do no harm since a Reiki practitioner is not directing any healing or healing any part of the body. The commenter argues that this means that Reiki practitioners should not be required to obtain licensure or pay fees.

RESPONSE: No massage, bodywork and somatic therapist is required to obtain certification or pay certification fees.

71. COMMENT: One commenter asks the Committee to acknowledge and embrace the many training modalities that healers may undergo to master their field. The commenter contends that she does not practice nursing or diagnose physical illness. The commenter sees no need for training in the area of nursing since the commenter does not practice nursing. The commenter urges the Committee to accept her certification process and support her right to practice as a Certified Healing Touch Practitioner.

RESPONSE: The Committee does acknowledge different modalities pursuant to N.J.A.C. 13:37-16.7(a). No one may practice nursing without holding a nursing license from the Board of Nursing. These rules do not impose any nursing requirements on certificants. N.J.S.A. 45:11-55 provides that massage, bodywork and somatic therapies do not include the diagnosis or treatment of illness, disease, impairment or disability, so no certified massage, bodywork and somatic therapist should be diagnosing a physical illness. An uncertified individual may practice any form of massage, bodywork and somatic therapy they choose to perform. A certified massage, bodywork and somatic therapist may perform any form of massage, bodywork and somatic therapy that they are educated to perform pursuant to N.J.A.C. 13:37-16.7.

72. COMMENT: One commenter is concerned that certified laban movement analysts will be required to obtain certification. The commenter contends that this technique falls under the definition of massage, bodywork and somatic therapy as defined in N.J.A.C. 13:37-16.2. The commenter contends that laban movement analysts are trained very differently than massage therapists.

RESPONSE: No one is required to obtain certification. If a certified laban movement analyst meets the requirements of certification, and chooses to obtain certification, they may do so.

73. COMMENT: Two commenters ask the Committee to provide definitions for "full-time" and "part-time." One commenter states that, if "full-time" is 40 hours per week, it is too much. This commenter asks if the 40-hour work week would include paperwork and commuting and how this time will be verified.

RESPONSE: N.J.A.C. 13:37-16.2 provides definitions for both "full-time" and "part-time." "Full-time" is defined as providing "a minimum of 750 hours of massage, bodywork and somatic therapies to clients during a year." "Part-time" is defined as providing "a minimum of 300 hours of massage, bodywork and somatic therapies to clients during a year." The definition of "full-time" does not equal 40 hours a week, it equals 15 hours a week. The definition of "full- time" does not include paperwork or commuting time, it includes only hours spent providing massage, bodywork and somatic therapies to clients. The Committee will require applicants to attest to the truth of their statements regarding the hours they have spent providing massage, bodywork and somatic therapy. If an individual makes untruthful statements about these hours on their application, they may be subject to disciplinary action.

74. COMMENT: Several commenters were concerned with the definitions of "full- time" and "part-time" in N.J.A.C. 13:37-16.2. They argue that these definitions set the number of hours for both full-time and part-time practice at too high a level. Some of the commenters contend that the Committee should adopt NCBTMB standards and set full-time at 400 hours a year. Others claim that full-time should be set at 450 hours a year. One commenter recommends that part-time be set at 100 hours a year. Another commenter contends that AMTA states that part-time massage therapists work an average of 1.6 hours a week. The commenter points out that the definition of "part-time" in the N.J.A.C. 13:37-16.2 requires over three and a half times more than this.

RESPONSE: The Committee believes that the standards for full-time and part- time set forth in N.J.A.C. 13:37-16.2 ensure that applicants for certification pursuant to N.J.A.C. 13:37-16.3 have sufficient knowledge and skill regarding the practice of massage, bodywork and somatic therapy to qualify for certification without meeting the education or examination requirements of N.J.A.C. 13:37-16.4. The Committee does not believe that setting full-time at 400 to 450 hours a year ensures that applicants for certification are sufficiently familiar with the practice of massage, bodywork and somatic therapy. The Committee also does not believe that setting part-time at 100 hours a year adequately prepares an applicant for certification. The Committee points out that it is not required to follow either NCBTMB standards or AMTA standards for full-time and part-time. The Committee is required to adopt standards that will provide for sufficiently prepared certificants who can safely and effectively practice massage, bodywork and somatic therapy.

75. COMMENT: One commenter asks, in reference to part-time practice, what will happen to a massage therapist who works less than 300 hours per year. The commenter asks if such an individual could obtain State certification and, if not, would they still be allowed to be a massage therapist.

RESPONSE: An individual who does not meet the requirements for part-time practice will not qualify for certification pursuant to N.J.A.C. 13:37-16.3. Such an applicant would have to apply for certification pursuant to N.J.A.C. 13:37-16.4. The Committee points out that an individual who does not qualify for certification through grandfathering or regular certification may continue to perform massage, bodywork and somatic therapy as long as that individual does not refer to him-or herself by the terms reserved to certificants pursuant to N.J.A.C. 13:37-16.1 and 16.9.

76. COMMENT: One commenter claims that the inclusion of the term "massage, bodywork and somatic therapies do not include the diagnosis or treatment of illness, disease, impairment or disability" in N.J.A.C. 13:37-16.2 and 16.16 indicated that the Committee is protecting consumers.

RESPONSE: The Committee thanks the commenter for his support of the proposed rules.

77. COMMENT: Several commenters believe that N.J.A.C. 13:37-16.2 and 16.6 should not state that "massage, bodywork and somatic therapies do not include the diagnosis or treatment of illness, disease, impairment or disability." The commenters argue that this ignores the work of therapists in a medical setting. The commenters claim that complementary therapeutic treatments as directed by qualified medical professionals for impairment and dysfunction is within a massage therapist's scope of practice. The commenters argue that massage therapists directly and indirectly contribute to the treatment of impairments and dysfunction. The commenters also point out that a physician will prescribe a massage, bodywork or somatic treatment for a specific illness, disease, impairment or disability. One commenter contends that this rule was requested by the Physical Therapy Association and that it is intended to protect physical therapy territory and not to serve the public. The commenters request that the Committee remove the word "treatment" from N.J.A.C. 13:37- 16.2 and 16.16 and that the Committee clarify what illness, disease, impairment or disability may be treated by a certificant.

RESPONSE: N.J.S.A. 45:11-55 states that "massage, bodywork and somatic therapies do not include the diagnosis or treatment of illness, disease, impairment or disability." The legislative intent that massage, bodywork and somatic therapies not include diagnosis or treatment is not altered by the fact that the commenter believes that massage, bodywork and somatic therapy is a treatment or that the commenter believes that physicians prescribe massage, bodywork and somatic therapy. The inclusion of this language in the rules comes directly from the Act and was not requested by the Physical Therapy Association. This Association had no input when these rules were being drafted.

78. COMMENT: One commenter agrees that massage, bodywork and somatic therapy does not include diagnosis but requests that consumers who are ill, suffering from a medical condition, impairment or disability be able to receive treatments from certificants. The commenter believes that certificants be required to obtain additional certifications in rehabilitation and medically focused massage in order to ensure quality of care for the sick and suffering.

RESPONSE: N.J.S.A. 45:11-55 specifically states that "massage, bodywork and somatic therapies do not include the diagnosis or treatment of illness, disease, impairment or disability." A certificant cannot diagnose or treat, but may still provide massage, bodywork and somatic therapy to individuals who are ill or suffer from a medical condition. The Committee is not authorized to adopt differing certification standards for certificants who work with sick and suffering clients as the commenter suggests.

79. COMMENT: One commenter contends that the term "treatment" should not be used anywhere in the regulations as P.L. 1999, c.19 does not refer to massage as a treatment and use of the term "treatment" is misleading to the public. The commenter points out that the phrase "application of massage" is used in the statute.

RESPONSE: The Committee agrees that the term "treatment" should not be used in the regulations. The Committee has amended N.J.A.C. 13:37-16.8 and 16.14 upon adoption to either remove the phrase "treatment" or to change it to "provision of massage."

80. COMMENT: One commenter contends that the medical definition of "heliotherapy" is "the treatment of disease by the use of sun and fresh air." The commenter argues that this is in conflict with the prohibition on treatment of illness or disease.

RESPONSE: N.J.S.A. 45:11-55 includes the word "heliotherapy" in its definition of "massage, bodywork and somatic therapies." Regardless of the commenter's interpretation of this term, the Legislature has clearly indicated that heliotherapy is within the scope of practice of certified massage, bodywork and somatic therapists.

81. COMMENT: One commenter contends that massage therapy often involves treatment and that many massage therapists specialize in chronic pain and injury clients. The commenter contends that massage therapists collect third party reimbursements for services. The commenter is concerned that the statement in the regulations that massage does not include treatments could prevent massage therapists from receiving insurance payments.

RESPONSE: N.J.S.A. 45:11-55 clearly indicates that massage, bodywork and somatic therapists cannot engage in treatments of chronic pain, injury or any other illness, disease, disability or impairment. The Committee has no jurisdiction over third party reimbursements or insurance payments. The rules do not prohibit such reimbursement or payments.

82. COMMENT: One commenter suggests that the Committee read the code of ethics of the NCBTMB which includes many references to massage therapy and treatment.

RESPONSE: The Committee is familiar with the NCBTMB code of ethics and recognizes that the NCBTMB code of ethics refers to therapy and treatment. The Committee is bound by the definition in the statute in formulating its rules, which provides that massage, bodywork and somatic therapy practices are designed for the purpose of promoting and maintaining the health and well-being of the client, but do not include the diagnosis and treatment of illness, disease, impairment or disability

83. COMMENT: One commenter argues that she was taught in school that performing massage was treating a client's medical problems. The commenter contends that she is often used by a chiropractor or neurologist as a supportive source of treatment. The commenter also contends that in school she was taught to include a section for treatment as part of Subjective data, Objective data, Assessment, Plan (SOAP) charting.

RESPONSE: N.J.S.A. 45:11-55 clearly states that treatment is not part of massage, bodywork and somatic therapy. The Committee points out that a certificant's scope of practice stems from the Act and these rules.

84. COMMENT: One commenter believes that the regulations should clearly define the distinction between massage, bodywork and somatic therapies. The commenter believes that it is not clear whether the three disciplines are equal to one another or whether bodywork and somatic therapies are sub-specialties of massage.

RESPONSE: The term "massage, bodywork and somatic therapies" encompasses every modality that a certificant may practice. As used in the Act and these rules, this term refers to one practice, not three separate practices. There is no distinction to be made between massage, bodywork and somatic. Bodywork and somatic therapies are not sub-specialties of massage.

85. COMMENT: Several commenters contend that the definition of "massage, bodywork and somatic therapy" must be amended to clarify what services a massage therapist can perform and to prevent an over-extension of the scope of practice or an overlap with the scope of practice of licensed chiropractic physicians, medical doctors, doctors of osteopathy and doctors of podiatric medicine. The commenters suggest that the Committee adopt a new definition of "massage therapy" that states that:

"Massage therapy" means the use of manual (not mechanical) techniques that involves a system of structured, skillful touching of the soft tissues of the human body including effleurage (stroking), petrissage (kneading), tapotement (tapping), non specific stretching, rules compression, vibration, and friction of the body with the hands, forearms, elbows, with or without the aid of heat limited to hot packs and heating pads, cold water, or non-prescription topical applications, for the purpose of improving circulation, enhancing muscle relaxation, and improving muscular tone.

The commenters argue that this definition reflects the true scope of practice for massage therapists.

RESPONSE: The definition of "massage, bodywork and somatic therapy" in N.J.A.C. 13:37-16.2 is taken from N.J.S.A. 45:11-55. The Committee is limited to use the definition provided by that statute. The Committee believes that the rules clearly indicate what services a certificant may perform. The Committee points out that there could be legitimate overlap between the scope of practice for certified massage, bodywork and somatic therapists and licensees and certificants from other Boards and Committees.

86. COMMENT: One commenter contends that, in the definition of "massage, bodywork and somatic therapy," the phrase "the energetic systems of the body" is so vague that it can encompass anything. The commenter asks if there are any limitations to "the energetic systems of the body." The commenter is also concerned that the phrase "positioning and mobilizing soft tissue of the body by manual technique" sounds too much like chiropractic and physical therapy. The commenter argues that this is too broad and that kneading muscle tissue is very different than pulling, tugging, stretching tendons and ligamentous tissue or chiropractic adjustment. The commenter argues that the limited education a massage therapist receives would permit them to perform massage for the purpose of improving circulation, enhancing muscle relaxation and improving tone, but would not qualify them to practice beyond this and it would harm the public to allow them to do so. The commenter argues that the scope of practice in the regulations should be deleted and replaced with "the practice of massage therapy is the stroking and kneading of the muscle tissues of the body for the purpose of improving circulation, enhancing muscle relaxation and improving tone." The commenter believes that the limitation imposed by N.J.A.C. 13:37- 16.7(b) should be retained, with a new prohibition on thrusting into any joint.

RESPONSE: The term "energetic systems of the body" is taken from N.J.S.A. 45:11-55. It is necessary for the regulatory definition of "massage, bodywork and somatic therapy" to conform to this statutory definition. It is unclear what the commenter meant by asking if there are any limitations to the energetic systems of the body. To the extent that the energetic systems of the body are integral parts of the body, there is no limitation between that system and the rest of the body. The phrase "positioning and mobilizing soft tissues of the body by manual technique" is also taken from N.J.S.A. 45:11-55. The phrase is not too broad and accurately reflects the scope of practice recognized by the Legislature. The Committee points out that kneading muscle tissue is not the extent of a certificant's scope of practice as articulated by the Legislature and the commenters differentiation between kneading muscles and pulling, tugging, stretching tendons and ligamentous tissue is not accurate. The statutes and rules do not claim that certificants can perform chiropractic adjustments. The education certificants receive qualifies them to practice within the scope articulated by the Legislature and the Committee. This scope is not limited to improving circulation, enhancing muscle relaxation and improving tone as the commenter contends. The scope of practice articulated in N.J.A.C. 13:37-16.7 should not be deleted as the commenter suggests. This scope of practice accurately reflects the way that certified massage, bodywork and somatic therapists may practice. The Committee does not believe it is necessary to specifically prohibit a certificant from thrusting into a joint. Certificants can only perform those modalities for which they have received education to perform, if thrusting into a joint is not part of a valid modality, then no certificant can receive education to do this and should not be doing this.

87. COMMENT: One commenter is concerned with the definition of "massage, bodywork and somatic therapy" in N.J.A.C. 13:37-16.2 and the statement that "massage, bodywork and somatic therapy practices are designed to affect the energetic systems of the body." The commenter believes that only energy modalities target energetic systems. The commenter asks why the definition does not include reference to "affecting the muscular system of the body." The commenter is concerned that the current definition excludes that largest section of bodyworkers, those who work on the soft tissues of the muscular system, and focuses only on energy workers. The commenter contends that the current wording of the definition leaves Swedish, Neuromuscular Therapy (NMT) and myofascial techniques out of massage, bodywork and somatic therapy.

RESPONSE: This definition is taken from N.J.S.A. 45:11-55. The Committee does not believe that this phrase limits the definition of "massage, bodywork and somatic therapy" to only energy modalities because the rest of the definition, with its reference to "systems of activity of structured touch which include holding, applying pressure, positioning and mobilizing soft tissue of the body by manual technique and use of visual, kinesthetic, auditory and palpating skills" clearly indicates that those who work on soft tissues are included in "massage, bodywork and somatic therapy."

88. COMMENT: One commenter asks that N.J.A.C. 13:37-16.2 and 16.7 be amended to prohibit certificants from offering cosmetology and hairstyling services as defined in N.J.S.A. 45:5B-3 et seq.

RESPONSE: Cosmetology and hairstyling services are clearly not included in the definition of massage, bodywork and somatic therapy articulated in N.J.A.C. 13:37-16.2 or in the scope of practice of certificants articulated in N.J.A.C. 13:37-16.7. It is not necessary to specifically prohibit practices that are obviously not related to massage, bodywork and somatic therapy.

89. COMMENT: Two commenters contend that the grandfathering provisions of N.J.A.C. 13:37-16.3 will allow untrained practitioners to obtain certification. They view this as unfair. One of the commenters agrees that regulations are necessary to provide certification to those who obtained their education before the current standards for education went into effect. Another commenter argues that the requirements for certification should be the same for everyone. RESPONSE: The provisions of N.J.A.C. 13:37-16.3 are based upon N.J.S.A. 45:11-61. In this provision, the Legislature determined that it was appropriate to certify individuals who are currently working as massage, bodywork and somatic therapists if they have completed at least 200 hours of education. The Committee must follow this requirement. The Committee believes that any individual who has been working full time for the past two years, or part-time for the past five years, and who has completed 200 hours of education in massage, bodywork and somatic therapy is adequately prepared to safely and effectively provide massage, bodywork and somatic therapy services.

90. COMMENT: One commenter suggests that N.J.A.C. 13:37-16.3 be amended to recognize licensure in Canada and licensure in states that have requirements that exceed New Jersey requirements.

RESPONSE: N.J.A.C. 13:37-16.3 deals with individuals who are currently practicing in New Jersey; it does not deal with licensure in other states. N.J.A.C. 13:37-16.5 deals with endorsement and recognizes that an individual licensed or certified in another state with educational requirements that are similar to this State should qualify for certification. This is based on N.J.S.A. 45:11-64 which recognizes licensure or certification in other states. The Committee points out that Canada is not a state within the United States of America and cannot be extended the same recognition.

91. COMMENT: Several commenters were concerned with the requirement in N.J.A.C. 13:37-16.3(c)1 that applicants submit Internal Revenue Service documentation or bank statements to the Committee when applying for certification. The commenters argue that the Committee should not be allowed to obtain copies of tax returns, bank statements or accounting records. The commenters contend that notarized affidavits that attest to hours spent working in massage should be sufficient for the Committee's needs. One commenter argues that financial records will not show the number of hours worked. The commenters suggest that this requirement be re-written to state that Internal Revenue Service documentation or bank statements could be one of the documents included to support an application and clarify that such documentation is not required.

RESPONSE: The commenters have misinterpreted N.J.A.C. 13:37-16.3(c)1. This rule does not require that applicants submit Internal Revenue Service documentation or bank statements. The rule requires an applicant to submit "a notarized affidavit stating that the applicant has worked full-time for the past two years or part-time for the past five years and indicating what methods of massage, bodywork and somatic therapy the applicant practiced." The rule states that this affidavit must attest to the authenticity of supporting records provided by the applicant and lists examples of such supporting records. These examples include tax returns, bank statements and accounting records. The Committee is not requiring the submission of these records; it is requiring that any submitted documents be authentic. In order to clarify this intent, the Committee has amended N.J.A.C. 13:37-16.3(c)1 upon adoption to indicate that the affidavit shall attest to the authenticity of any records that may be attached to the affidavit. The amended rule will read: "A notarized affidavit stating that the applicant has worked full-time for the past two years or part-time for the past five years and indicating what methods of massage, bodywork and somatic therapy the applicant practiced. The affidavit shall attest to the authenticity of supporting records such as tax returns, bank statements and accounting records, which may be attached to the affidavit."

92. COMMENT: One commenter points out that NCBTMB audits appointment books in order to determine work hours. The commenter argues that, since the Committee is using NCBTMB as the model for these regulations, the Committee should perform a similar audit if questions as to hours worked arise.

RESPONSE: The Committee is not using NCBTMB as a model for these rules. The Committee drafted these rules pursuant to the statutory dictate of N.J.S.A. 45:11-53 et seq. The Committee recognizes NCBTMB for its examination and continuing education courses, but NCBTMB is not the controlling authority for these rules. The Committee may audit appointment books, along with many other items, to verify the qualifications of applicants based on full-time or part- time practice.

93. COMMENT: Several commenters were concerned with requirements that applicants hold current certification in Basic Life Support (BLS) from a course approved by the American Heart Association. The commenters ask if the American Red Cross, the National Safety Council and American Safety and Health Institute courses in BLS would satisfy this requirement. Several of the commenters contend that the American Red Cross CPR certification is recognized as equivalent to the American Heart Association BLS course. One commenter suggests that the Committee recognize any CPR course given by an agency approved by the New Jersey Office of Emergency Medical Services.

RESPONSE: The Committee has researched organizations that offer certification that is equivalent to the American Heart Association BLS course. It has determined that the State Department of Health and Senior Services recognizes courses given by the American Heart Association, the American Red Cross, the National Safety Council, Coyne First Aid, Inc., the American Safety and Health Institute and EMP International Inc. The Committee has amended N.J.A.C. 13:37-16.3, 16.4, 16.5, 16.6 and 16.11 upon adoption in recognition that these organizations offer courses substantially similar to the American Heart Association's BLS course.

95. COMMENT: One commenter argues that the Committee should allow any course that is equivalent to the American Heart Association course to count towards the BLS requirement.

RESPONSE: The Committee has amended N.J.A.C. 13:37-16.3, 16.4, 16.5, 16.6 and 16.11 upon adoption to recognize that other organizations approved courses that are substantially equivalent to the American Heart Association BLS course.

96. COMMENT: One commenter points out that the regulations do not indicate whether Heartsaver CPR or Healthcare provider CPR is required as part of the BLS certification.

RESPONSE: The Committee does not wish to dictate which CPR program must be taken during a BLS course. Any CPR program, Heartsaver, Healthcare provider or any other, that is part of the BLS course will satisfy the Committee's requirements.

97. COMMENT: One commenter believes applying for certification "will be a hassle," since he has already taken a BLS course to get into school. The commenter also believes that two letters of recommendation will be a hassle to submit. The commenter contends that it is expensive to get a letter notarized or to have an affidavit, since a lawyer must prepare the document.

RESPONSE: The Committee requires that applicants for initial certification and renewal of certification maintain current certification in BLS. The Committee does not believe that this presents the difficulty envisioned. The requirement that an applicant submit two affidavits attesting to his or her good moral character is not unduly burdensome and is commonly required by other boards and committees. These affidavits do not have to be drafted by an attorney. The Committee points out that it is relatively easy to obtain notarization.

98. COMMENT: One commenter claims that the term "successfully passing the NCBTMB or NCCAOM examination" in N.J.A.C. 13:37-16.4(a)2 should be changed to "successfully passing examination or holding certificate from NCBTMB or the NCCAOM examination."

RESPONSE: N.J.S.A. 45:11-60 requires that an applicant either complete a minimum of 500 hours of class study or successfully complete the NCBTMB examination or a substantially equivalent examination approved by the Committee. The Committee has found that the NCCAOM examination is substantially equivalent to the NCBTMB examination. This statute requires the Committee to recognize the examinations offered by these organizations, the Committee must follow the dictates of this statute and cannot refer to certification by these organizations as the commenter suggests.

99. COMMENT: One commenter provided the Committee with questions that have recently appeared on the NCE examination and argues that the NCE should not be used because these questions ignore how science obtains information. The questions the commenter submitted deal with meridians, manipulation of the occipital regions, acupuncture, shiatsu, reflexology and the basic pattern of energy for the spleen channel. The commenter contends that these questions imply a State acceptance of mystical practices.

RESPONSE: The Committee assumes that the commenter is referring to the NCBTMB examination, which is sometimes referred to as the NCE. The Committee does not believe that this examination ignores how science obtains information. The Committee believes that this examination accurately tests an individual's knowledge as to massage, bodywork and somatic therapy. Regardless of the Committee's beliefs regarding this examination, N.J.S.A. 45:11-60 requires the Committee to recognize this examination as a pathway to certification. The Committee does not believe that the NCE examination implies a State acceptance of mystical practices.

100. COMMENT: One commenter asks if NCBTMB means anything and suggests that the Committee require everyone to take the NCBTMB examination so that everyone could obtain certification.

RESPONSE: NCBTMB is the national organization that provides an examination recognized by N.J.S.A. 45:11-60. The Committee cannot require that every applicant successfully complete this examination because N.J.S.A. 45:11-60 sets out two pathways to certification, completion of the examination or completion of a minimum of 500 hours of class study.

101. COMMENT: Several commenters are concerned with N.J.A.C. 13:37-16.4(b) 4 which requires applicants for certification to submit two affidavits of good moral character. The commenters ask what value such affidavits will be and argue that those without "good moral character" will easily be able to obtain such affidavits. The commenters ask for a definition of "moral character" and how the Committee will validate such affidavits. The commenters are concerned that the affidavits they prepare will not satisfy the Committee. One commenter points out that affidavits are sworn, written declarations made before public officials and asks if the Committee is so suspicious of its applicants that a signed letter of reference would not suffice.

RESPONSE: N.J.S.A. 45:11-60 requires the Committee to ensure that applicants are of good moral character. The optimal way for the Committee to assess an applicant's moral character is to require the submission of two affidavits of good moral character. The Committee does not believe it is necessary to provide a definition of "good moral character." The individuals who provide the affidavits of good moral character will supply their subjective determination of the applicant's moral character without such definition. The Committee will provide applicants with affidavit forms for individuals to fill out. The Committee is required by N.J.S.A. 45:11-60 to develop a mechanism to verify an applicant's good moral character.

102. COMMENT: One commenter asks if nurses can become massage therapists without meeting the educational requirements in the regulations.

RESPONSE: N.J.S.A. 45:11-60 states that applicants who complete 500 hours of class study or the examination shall qualify for certification. A nurse who has not met the educational requirements of the rules would have to successfully complete the examination, just like any other individual.

103. COMMENT: One commenter believes that massage schools should include courses that address therapist safety with regard to repetitive stress injury, tendinitis, carpal tunnel syndrome and other associated problems.

RESPONSE: The Committee has no authority to regulate massage schools; it only has the authority to determine what education an applicant must complete in order to qualify for certification. The Committee does not believe that such courses would prepare an individual to practice safely and effectively as a massage, bodywork and somatic therapist.

104. COMMENT: One commenter contends that many students and graduates of State approved schools will not meet the requirements of N.J.A.C. 13:37-16.4(d). The commenter contends that this rule will create an undue burden on individuals trying to enter the field. The commenter recognizes that an individual who does not meet the educational requirements of N.J.A.C. 13:37- 16.4(d) could qualify for certification by passing the NCBTMB or NCCAOM examinations, but contends that this pathway to certification imposes financial burdens on applicants. The commenter suggests that the Committee amend the N.J.A.C. 13:37-16.4(d) for recent graduates and students so that they will not be burdened with additional certification requirements.

RESPONSE: The Committee is authorized to create one set of certification criteria for individuals who are not currently practicing. The Committee drafted its educational requirements to ensure that certificants are properly prepared to safely and effectively practice massage, bodywork and somatic therapy. As the commenter recognizes, there is a second pathway to certification for individuals whose education does not qualify for certification. The Committee does not believe that the cost of the examination is unduly burdensome and will not amend N.J.A.C. 13:37-16.4(d) as the commenter requests.

105. COMMENT: One commenter is concerned that graduates of massage schools will not meet the requirements of N.J.A.C. 13:37-16.4(d). The commenter suggests that the Committee create a provisional license for such individuals who completed massage programs that consisted of less than 500 hours. The commenter suggests that such a license should be valid for at least three years during which the provisional licensee could complete any education he or she is lacking.

RESPONSE: The Committee has no statutory authority to create a provisional license as the commenter suggests.

106. COMMENT: One commenter suggests that the Committee require applicants to take a State examination or a national examination that has been approved by the State.

RESPONSE: The Committee cannot require that every applicant complete an examination. N.J.S.A. 45:11-60 dictates that applicants can qualify for certification by completing either a minimum of 500 hours of education or the examination.

107. COMMENT: Several commenters are concerned with N.J.A.C. 13:37-16.5 which requires an applicant who is licensed in another state to submit a copy of that state's statutes and regulations. The commenters suggest that the Committee determine which other states have certification/licensure requirements that are equivalent to the ones in New Jersey so that applicants would not have to submit copies of the statutes and regulations.

RESPONSE: The Committee points out that statutes and regulations often change. As such, a review it performs today may not be relevant a year from now as to the equivalency of another state's requirements to New Jersey requirements. The Committee does not believe that it is unduly burdensome for applicants to submit copies of statutes and regulations.

108. COMMENT: Two commenters claim that N.J.A.C. 13:37-16.6 should not require suspended certificants to submit an affidavit listing every job held while suspended. The commenters argue that any non-massage employment is irrelevant to the concerns of the Committee. The commenters argue that such a request is an invasion of privacy.

RESPONSE: N.J.S.A. 45:1-7.2 requires that an affidavit of jobs held during suspension be submitted when applying for reinstatement. This requirement is imposed on the lapsed licensees or certificants of every Board and Committee.

109. COMMENT: One commenter contends that N.J.A.C. 13:37-16.6(d), which states that "individuals who continue to hold themselves out as State certified massage, bodywork and somatic therapists after being suspended shall be deemed to have violated N.J.A.C. 13:37-16.9, even if no notice of suspension had been provided to the person" relieves the Committee from any responsibility to inform certificants if they are suspended. The commenter contends that this is unacceptable.

RESPONSE: The Committee will notify a certificant whose certificate has been suspended for failure to renew. The rule puts all certificants on notice that, if they do not renew the certificate, it will automatically be suspended without prior notification.

110. COMMENT: One commenter is concerned with N.J.A.C. 13:37-16.6. The commenter asks what the Committee will do to an individual who has an advertisement that indicates that they are certified when the individual has not renewed certification.

RESPONSE: An individual who has had his or her certification suspended pursuant to N.J.A.C. 13:47-16.6(d) and who continues to indicate in advertisements that he or she is certified will be in violation of N.J.S.A. 45:11-65. Such an individual will be treated like any other uncertified individual who violates the law.

111. COMMENT: One commenter contends that paying past due fees when renewing certification is a hardship due to the nature of massage therapists who tend, the commenter argues, to move often.

RESPONSE: N.J.S.A. 45:1-7.2 requires that any certificant suspended by operation of a failure to renew pay all past delinquent renewal fees when renewing certification. An individual who does not wish to pay renewal fees may register as inactive.

112. COMMENT: Two commenters contend that a scope of practice, as found at N.J.A.C. 13:37-16.7, is appropriate for a licensing statute and is not consistent with the certification statute that governs massage, bodywork and somatic therapists. The commenters suggest that the term "scope of practice" be replaced with "description of services."

RESPONSE: While N.J.S.A. 45:11-53 et seq. is a titling act that does not prohibit uncertified individuals from rendering massage, bodywork and somatic therapy services, N.J.A.C. 13:37-16.7 is not inconsistent with N.J.S.A. 45:11-53 et seq. Pursuant to N.J.S.A. 45:11-67, the Board, in consultation with the Committee, has the authority to adopt rules that effectuate the purposes of this Act. This authority includes the power to adopt standards that all certificants shall follow and these standards are referred to as a "scope of practice."

113. COMMENT: One commenter requests that the Committee provide the statutory authority for proposing a scope of practice. The commenter argues that P.L. 1999, c.19 provides for the titling of certificants, but did not create a practice act or authorize a scope of practice for certificants.

RESPONSE: N.J.S.A. 45:11-67 authorizes the Board of Nursing, after consultation with the Committee, to adopt regulations that effectuate the purposes of the Act. As the purpose of the Act is to certify and regulate massage, bodywork and somatic therapists, N.J.S.A. 45:11-67 authorizes the adoption of scope of practice regulations.

114. COMMENT: One commenter points out that the regulations recognize the different qualifications and scopes of practice that massage, bodywork and somatic therapists have.

RESPONSE: The Committee agrees that the rules do recognize different qualifications and scopes of practice.

115. COMMENT: One commenter argues that the Committee has the authority to regulate the training a massage therapist receives but that the Committee cannot restrict a massage therapist from receiving training.

RESPONSE: The Committee is not restricting the training a massage, bodywork and somatic therapist receives. The Committee is simply setting forth the education that applicants for certification must complete if they choose to obtain certification.

116. COMMENT: One commenter points out that the regulations do not address breast massage. The commenter contends that many states allow breast massage when there has been informed consent from the client.

RESPONSE: The commenter is correct that there is neither express recognition of permissibility nor a regulatory prohibition against performing breast massage.

117. COMMENT: One commenter asks the Committee to draft a rule that would allow a certificant to work outside of their house.

RESPONSE: The rules do not prohibit a certificant from working outside of their house. N.J.A.C. 13:37-16.8(n) and 16.10(b) specifically recognize that certificants may work in a setting outside of their place of business.

118. COMMENT: One commenter contends that certification is a process in which a recognized therapist is credentialed by an approved provider. The commenter also contends that massage courses are thorough and have rigorous testing procedures. The commenter suggests that the Committee accredit providers of courses as opposed to limiting the scope of practice of massage therapists.

RESPONSE: The commenter's definition of "certification" is inaccurate. Certification is the process by which an individual receives authorization from the Committee to refer to themselves by the titles reserved to certificants pursuant to N.J.A.C. 13:37-16.9. Such authority stems from N.J.S.A. 45:11-53 et seq. The Committee has no authority to accredit providers of courses; the Committee's authority is limited to those who obtain certification as massage, bodywork and somatic therapists. Regulating certified massage, bodywork and somatic therapists inherently involves the adoption of regulatory guidelines and limitations in order to ensure safe and effective practice.

119. COMMENT: One commenter is concerned because the Committee is taking her work away from her. She does not charge clients for the services she provides and these services do not require the time consuming and costly training that massage therapy does.

RESPONSE: The Committee points out that no one is required to obtain certification and that N.J.S.A. 45:11-65 expressly allows non-certificants to provide massage, bodywork and somatic therapy. The Committee also points out that whether or not an individual charges for the services he or she provides is not relevant to certification.

120. COMMENT: One commenter contends that N.J.A.C. 13:37-16.7 should be amended to prohibit a certificant from applying a massage if a client experiences pain during the massage.

RESPONSE: The Committee is not sure what the commenter meant by the term "pain." As this term is so subjective, it is inappropriate to amend the rules as the commenter suggests. The Committee points out that N.J.A.C. 13:37- 16.16 will ensure that clients are properly informed as to what they should do if they experience what they determine is "pain" during massage, bodywork and somatic therapy.

121. COMMENT: One commenter believes that massage therapists should never allege that they can perform curative treatments or state that they perform physiological therapy or modality therapy. The commenter argues that massage therapists should never use the term "diagnosis or treatment of an illness or disease." The commenter argues that massage therapy is not an integral part of the healing arts such as dentistry, medicine, chiropractic or optometry.

RESPONSE: N.J.S.A. 45:11-55 specifically states that massage, bodywork and somatic therapy does not include the diagnosis or treatment of illness, disease, impairment or disability. The commenter is correct that massage, bodywork and somatic therapists should never allege that they can perform curative treatments or use the term "diagnosis or treatment of an illness or disease." The Committee disagrees that massage, bodywork and somatic therapy is not part of the healing arts. N.J.S.A. 45:11-55 recognizes that massage, bodywork and somatic therapy promote and maintain the health and well-being of clients. The Committee points out that any physiological therapy or modality therapy that is part of massage, bodywork and somatic therapy may be performed by certificants.

122. COMMENT: One commenter contends that the scope of practice of massage, bodywork and somatic therapy should state that these therapies involve the use of manual (not mechanical) techniques through a system of structured, skillful touching of the soft tissues of the human body that includes effleurage (stroking), petrissage (kneading), tapotement (tapping), non specific stretching, compression, vibration, and friction of the body with the hands, forearms and elbows.

RESPONSE: The scope of practice articulated in N.J.A.C. 13:37-16.7 reflects the statutory definition of massage, bodywork and somatic therapy articulated in N.J.S.A. 45:11-55. The commenter's suggested scope does not conform to this statutory definition and the Committee will not amend N.J.A.C. 13:37- 16.7 to incorporate the commenter's suggestions.

123. COMMENT: One commenter contends that the phrase "certificant will be permitted to" should be changed to "certificant will not be permitted to" in N.J.A.C. 13:37-16.7.

RESPONSE: The phrase "certificant will be permitted to" does not appear in N.J.A.C. 13:37-16.7. The phrase is used in the summary of this section, but it is proceeded by the term "no." This indicates that certificants are not permitted to perform certain tasks and the commenter's suggested change is not necessary.

124. COMMENT: One commenter contends that much of the training he received was before NCBTMB existed. The commenter points out that some therapies, such as Reiki, do not require courses to get approvals and argues that they are still good courses. The commenter argues that N.J.A.C. 13:37-16.7(a)1 is too restrictive and that many therapists have taken training that would not be covered by this rule.

RESPONSE: The Committee must set a standard to ensure that the education an individual receives is adequate to prepare him or her to practice massage, bodywork and somatic therapy safely and effectively. The Committee believes that N.J.A.C. 13:37-16.7(a)1 appropriately sets forth a standard that ensures such adequacy without being unduly burdensome. The Committee points out that no one is required to obtain certification and that the commenter need not apply for certification or conform to the dictates of N.J.A.C. 13:37-16.7(a) 1 if the commenter believes that his or her education is not sufficient to meet the regulatory requirements.

125. COMMENT: One commenter was concerned that N.J.A.C. 13:37-16.7(a) would prevent certificants from practicing newly developed bodywork methods. This rule states that certificants shall only practice those methods of massage, bodywork and somatic therapy for which the certificant has received training during his or her initial training or has learned during a course offered by a provider approved by the NCBTMB or NCCAOM, or which is offered by a school which is approved by an agency recognized by the United States Department of Education or offered by a school which is approved by the New Jersey Department of Education, or an agency of another state with requirements substantially similar to the requirements of the New Jersey Department of Education as set forth in N.J.S.A. 18A:69-1 et seq. and N.J.A.C. 6A:18-1. Some of these commenters were individuals who had developed their own method of bodywork. These commenters point out that individuals whom they teach can practice these new techniques, but that the developer of the method could not practice as the rule is drafted. The commenter suggests that N.J.A.C. 13:37-16.7(a) be redrafted to allow certificants to practice methods that they have been trained in or which they have developed.

RESPONSE: The Committee agrees that individuals who develop new methods of massage that are recognized as valid should be allowed to practice these methods. The Committee has amended N.J.A.C. 13:37-16.7(a) upon adoption to allow individuals who develop methods of massage, bodywork and somatic therapy to practice these methods. The rule states in pertinent part: "A certificant shall only practice those methods of massage, bodywork and somatic therapy which . . . the certificant developed and which are taught in a course offered by a provider approved by the NCBTMB or NCCAOM."

126. COMMENT: One commenter believes the proposal will prove an impediment to developing new styles of massage because the rules only allow certificants to practice entrenched styles.

RESPONSE: The Committee disagrees that the rules require certificants to practice entrenched styles of massage, bodywork and somatic therapy. As drafted, N.J.A.C. 13:37-16.7(a) allows certificants to practice methods of massage, bodywork and somatic therapy that the certificant learned after his or her initial education. This rule was drafted to specifically recognize that massage, bodywork and somatic therapy is an evolving profession in which new methods of practice are being developed. As long as the new method is recognized by either NCBTMB or NCCAOM as legitimate methods, certificants are able to obtain education in this new method and apply it as part of their practice. As stated above, the Committee is amending N.J.A.C. 13:37-16.7(a) to allow certificants to practice methods of massage that they have developed and which are recognized as valid.

127. COMMENT: One commenter argues that therapists should be permitted to perform any therapies as long as they disclose the impact of such therapies to clients.

RESPONSE: N.J.S.A. 45:11-55 et seq. states that massage, bodywork and somatic therapy practices are designed for the purpose of promoting and maintaining the health and well-being of the client, but do not include the diagnosis and treatment of illness, disease, impairment or disability. Certificants cannot engage in such diagnosis or treatment. Other statutes reserve specific practices to other licensees and certificants. The Committee drafted N.J.A.C. 13:37-16.7 in order to ensure that those who hold State certification are not engaging in practices that are either unsafe or are outside of the scope of an individual who has completed the education required for certification. The Committee must ensure that an individual who holds State certification, and is representing to the public that they are professionals recognized by the State, are practicing in a safe and effective manner. Disclosure to clients is not sufficient to protect clients from unsafe practices.

128. COMMENT: One commenter points out that many therapists are trained to perform procedures that are prohibited by N.J.A.C. 13:37-16.7 and that NCBTMB awards continuing education credits for training in these procedures.

RESPONSE: The Committee has prohibited certificants from performing methods of massage, bodywork and somatic therapy that are either prohibited by statutes or are unsafe. These prohibitions override any recognition by NCBTMB or any other organization when it comes to the practice of certificants in New Jersey.

129. COMMENT: One commenter contends that N.J.A.C. 13:37-16.7 should prohibit penis massage. The commenter believes that, without such a prohibition, the regulations will allow prostitution.

RESPONSE: The Committee agrees with the commenter and has amended N.J.A.C. 13:37-16.7(b)3 upon adoption. The amended rule reads in pertinent part: "Notwithstanding any training received as permitted by (a) above, a certificant shall not perform: . . . vaginal or penile massages."

130. COMMENT: One commenter contends that the use of physical modalities such as heat lamps, infrared, ultraviolet light, low-level laser therapy and mechanical traction should be prohibited.

RESPONSE: The Committee points out that the application of heat is a part of massage. The Committee does not believe that it is necessary to prohibit the use of any of the modalities that the commenter lists. As long as the use of these modalities is part of massage, bodywork and somatic therapy and does not constitute treatment of illness, disease, impairment or disability, certificants may be permitted to use them.

131. COMMENT: One commenter contends that certificants should be prohibited from using the terms physiotherapist, physiotherapy, physical modalities, chiropractic therapy and from making claims that are curative in nature.

RESPONSE: As none of these terms refer to massage, bodywork and somatic therapy, the Committee does not believe it is necessary to discuss them in these rules. There are many terms that do not refer to massage, bodywork and somatic therapy and that massage, bodywork and somatic therapists should not use. It is not possible to list all these terms as the commenter suggests. If the use of specific terms violates the statutes or rules that govern other professions, a certificant may be subjecting themselves to action by the Boards and Committees that regulate those professions. The Committee agrees that certificants should not make claims that are curative in nature as they are prohibited from treating or diagnosing illness, disease, impairment or disability.

132. COMMENT: Several commenters suggest that N.J.A.C. 13:37-16.7(b) be amended to include additional restrictions on a certificant's scope of practice. The commenters suggest that N.J.A.C. 13:37-16.7(b) prohibit: the diagnosis or treatment of illness, disease, impairment or disability; utilization of prescriptive or medicinal creams, lotions or fluids; utilization of heat lamps, hydrocolator packs; the discussion, recommendation or prescription of any over-the-counter or prescription drugs; spinal or other joint manipulations, chiropractic adjustments/manipulations of the spine, pelvis and related structures; and any other modality, procedure, or service for which a license to practice chiropractic medicine, osteopathic medicine, physical therapy or podiatric medicine is required by the law of New Jersey to perform. The commenters also suggest that the Committee adopt a definition of "prescription drug" as "those drugs which under Federal law are required prior to being dispensed or delivered to be labeled with either of the following statements: (i) 'Caution: Federal Law Prohibits Dispensing Without Prescription'; or (ii) 'Caution: Federal Law Restricts This Drug To Use By or On The Order Of A Licensed Veterinarian'; or (iii) a product which is required by any applicable Federal or state law regulation to be dispensed on prescription only." The commenters argue that this would limit the scope of practice of a certificant to be consonant with their training and expertise and would avoid conflict with the scope of practice of other medical professionals.

RESPONSE: The Committee agrees that the definition of "massage, bodywork and somatic therapies" articulated in N.J.S.A. 45:11-55 does not include treating and diagnosing illness, disease, impairment and disabilities. The Committee has amended N.J.A.C. 13:37-16.7(b) upon adoption to clarify that this in the rules. The amended rule states in pertinent part that: "Notwithstanding any training received as permitted by (a) above, a certificant shall not perform: . . . treatment or diagnosis of illness, disease, impairment or disability." The Committee does not agree that certificants should be prohibited from utilizing prescriptive or medicinal creams, lotions or fluids. The statutory definition of "massage, bodywork and somatic therapies" found at N.J.S.A. 45:11-55 specifically states that the "external application of herbal or topical preparations not classified as prescription drugs" is part of massage, bodywork and somatic therapy. As long as the creams, lotions or fluids are being applied safely, there is no reason to prohibit their use in order to protect the safety of clients. The Committee does not agree that heat lamps or hydrocolator packs should be prohibited either. The use of heat is intrinsic to the practice of massage, bodywork and somatic therapy and, as long as these devices are not used in the treatment or diagnosis of illness, disease, impairment or disability, certificants should be allowed to use them. The Committee believes that certificants will need to understand what medications a client is taking before performing massage, bodywork and somatic therapy. It is necessary, therefore, to allow certificants to discuss any drug the client is taking. The Committee points out that certificants do not have prescriptive authority, so it is not necessary to prohibit certificants from prescribing or recommending drugs. The Committee points out that spinal or joint manipulations are within the scope of practice of licensed chiropractors and the chiropractic practice act, N.J.S.A. 45:9-41.4 et seq. prohibits non-licensees from performing these procedures. It is unnecessary to repeat this prohibition in these rules. Similarly, it is not necessary to prohibit certificants from performing procedures that require licensure to perform, since this prohibition is already firmly established by law. As certificants cannot prescribe medications, and there is no mention of prescription drugs in the rules, it is not necessary to define "prescription drug" as the commenters suggest.

133. COMMENT: One commenter contends that the scope of practice as set forth in N.J.A.C. 13:37-16.7 should prevent certificants from performing activities that are under the scope of practice of other licensed professionals. The commenter argues that certificants should be prohibited from performing spinal or joint or chiropractic manipulations and Grade II or V joint mobilizations. The commenter also believes that certificants should be specifically enjoined from providing any service or procedure for which a license to practice medicine, chiropractic, osteopathy, physical therapy or podiatry is required by law.

RESPONSE: Performing activities that require licensure by another Board or Committee would constitute unlicensed practice that would be subject to discipline by that Board or Committee. It is unnecessary to specifically state such a prohibition in these rules.

134. COMMENT: Several commenters were concerned that N.J.A.C. 13:37-16.7(b) 1 would prohibit certificants from performing colonic irrigation. The commenters contend that the nursing profession is attempting to prevent massage therapists who are properly trained from performing colonic irrigation.

RESPONSE: The Committee believes that colonic irrigations are intrusive procedures that are not part of the practice of massage, bodywork and somatic therapy. Performing colonic irrigation is not within the statutory definition of massage, bodywork and somatic therapy.

135. COMMENT: Some commenters argue that an individual needs to be certified as a colon therapist to perform colonic irrigation.

RESPONSE: Colonic irrigation is not included in the definition of "massage, bodywork and somatic therapy" in N.J.S.A. 45:11-55 and, therefore, is not included in the scope of practice of these rules.

136. COMMENT: One commenter points out that Florida requires that colonic irrigation be performed by trained massage therapists and argues that it is therefore nonsensical for New Jersey to prohibit massage therapists from performing colonic irrigation. The commenter points out that the Committee recognizes training received in other states but does not consider how other states regulate massage therapy.

RESPONSE: The Committee points out that Florida and New Jersey have different statutes governing massage, bodywork and somatic therapists. While Florida may require that colonic irrigation be performed by massage therapists, colonic irrigation is not included in the definition of "massage, bodywork and somatic therapy" in N.J.S.A. 45:11-55 and therefore is not included in the scope of practice of these rules. The Committee did consider how other states regulate massage therapy; however, the Committee is required to comply with the Act.