Section 5.02. Unprofessional conduct.

  "Unprofessional conduct" includes the following, or aiding, abetting, or conspiring the same:

(1)  Violating s. 460.14 (2) (a) to (j) , Stats., or any provision of a board order.

(2)  Being convicted of any of the following: ss. 940.22 , 940.225 , 944.15 , 944.17 , 944.30 (1m) , 944.31 , 944.32 , 944.33 , 944.34 , 948.02 , 948.025 , 948.08 , 948.085 , 948.09 , 948.095 , and 948.10 , Stats.

(3)  Engaging in fraud, misrepresentation, or deceit in applying for or procuring a license to practice massage therapy or bodywork therapy, in connection with applying for or procuring periodic renewal of a license, or in otherwise maintaining a license.

(4)  Engaging in any act of fraud, deceit, or misrepresentation, including acts of omission to the board or any person acting on the board's behalf, including department of safety and professional services personnel.

(5)  Employing illegal or unethical business practices, including either of the following:

(a) Fraud, deceit, or misrepresentation in obtaining or attempting to obtain any fee or third-party reimbursement.

(b) Engaging in uninvited, in-person solicitation of actual or potential clients, who because of their particular circumstances are vulnerable to undue influence.

(6)  Knowingly, negligently, or recklessly making any statement, written or oral, in the course of practicing massage therapy, which is likely to deceive, defraud, mislead or create an unacceptable risk of harm to a client, the public, or both.

(7)  Engaging in false, misleading, or deceptive advertising.

(8)  Failing to maintain accurate and timely records necessary for the continuity of a client's massage therapy or bodywork therapy treatment. Records are to be maintained for a period of at least 5 years.

(9)  Performing any act constituting the practice of massage therapy or bodywork therapy on any client without the client's informed consent or after the client has withdrawn informed consent, whether verbally or in writing, or either of the following:

(a) Failure to document informed consent.

(b) Failure to inform the client that any act of massage therapy may or will be performed by unlicensed personnel.

(10)  Any practice or conduct that falls below the standard of minimal competence within the profession that results in unacceptable risk of harm to the client, regardless of whether injury results.

(11)  Practicing as a massage therapist or bodywork therapist when physical or mental abilities are impaired by the use of controlled substances or other drugs, chemicals or alcohol, or by other causes.

(12)  Practicing as a massage therapist or bodywork therapist with a mental or physical condition that impairs the ability of the licensee to practice within the standard of minimal competence or without exposing a client to an unacceptable risk of harm.

(13)  Practicing beyond the scope of massage therapy or bodywork therapy.

(14)  Divulging any information that a client gives in confidence to the licensee or any other information that the licensee obtains about a client in the course of practicing massage therapy or bodywork therapy that a reasonable person in the client's position would want kept confidential unless the information is otherwise required by law to be disclosed or the client specifically authorizes the disclosure of the information.

(15)  Engaging in sexually explicit conduct, sexual contact, exposure, gratification, or other sexual behavior with or in the presence of a client, a client's immediate family member, or a person responsible for the client's welfare. For the purposes of this subsection all of the following shall apply:

(a) Sexual nature of contact shall be determined from the totality of the circumstances and is presumed when the massage therapist or bodywork therapist has contact with a client's intimate parts without legitimate professional justification for doing so.

(b) An adult client shall continue to be considered a client for 6 months after the termination of professional services.

(c) If a client is a minor, he or she shall continue to be considered a client for 2 years after the termination of services or for 2 years after the client reaches the age of majority, whichever is longer.

(16)  Engaging in any sexual contact or conduct with or in the presence of a client or former client who lacks the ability to consent for any reason, including age, medication, or psychological or cognitive disability.

(17)  Falsifying client records.

(18)  Failing to provide access to client records when requested by the board or the board's representative.

(19)  After a request by the board, failing to cooperate in a timely manner with the board's investigation of complaints filed against the licensee. There is a rebuttable presumption that a licensee who takes longer than 30 calendar days to respond to a request of the board has not acted in a timely manner under this subsection.

(20)  Failing to provide clean clothing, linens, and equipment.

(21)  Failing to provide draping and treatment that ensures the safety and privacy of a client.

(22)  Permitting or assisting any person to perform acts constituting massage therapy or bodywork therapy without sufficient qualifications, necessary credentials, adequate informed consent, or adequate supervision. The licensed massage therapist or bodywork therapist is responsible for determining whether general, one-to-one, or on-premises supervision is necessary to protect the client from an unacceptable risk of harm. The licensed massage therapist or bodywork therapist retains responsibility for delegated or supervised acts unless the board determines that the delegate knowingly and willfully violated the supervisor's direction or instruction.

(23)  Failing to inform a client about contraindications of massage therapy or bodywork therapy as it related to the information provided on the informed consent or intake form completed by the client.

(24)  Failing to complete continuing education requirements within the time period established by s. MTBT 7.02 (3) .

(25)  Having an adverse action against a credential pertaining to the practice of massage therapy or bodywork therapy by any agency of this or another state, or by an agency or authority within the federal government. This subsection applies whether the adverse action results in a temporary or permanent limitation, restriction, suspension or revocation, and whether or not the adverse action is accompanied by findings of negligence or unprofessional conduct.

(26)  Conviction of any federal or state law or rule, including criminal law, which is substantially related to the practice of massage therapy or bodywork therapy. For the purposes of this subsection the following shall apply:

(a) Except as otherwise provided by law, a certified copy of a relevant decision by a state or federal court or agency charged with making legal determinations relevant to this paragraph is conclusive evidence of its findings of facts and conclusions of law.

(b) Under this paragraph, the board has the burden of proving that the act is substantially related to the practice of massage therapy or bodywork therapy.

(27)  Failing to report to the board any incident in which the licensee has direct knowledge of reasonable cause to suspect that a massage therapist or bodywork therapist has committed any unprofessional, incompetent, or illegal act in violation of state or federal statute, administrative rule, or orders of the board. Reports shall be made within the time necessary to protect clients from further unacceptable risk of harm.

(28)  Failing to display his or her license in his or her place of business or practice so that it can easily be seen and read by the public. In the case of a mobile practice, a licensee is required to be able to present his or her license for public display.

(29)  Failing to maintain liability insurance coverage in an amount that is not less than $1,000,000 per occurrence and $1,000,000 for all occurrences in one year, pursuant to s. 460.05 (1) (g) , Stats.

CR 14-041 : cr. Register June 2015 No. 714 , eff. 7-1-15; correction in (24) made under s. 35.17 , Stats., Register June 2015 No. 714 .