(1) The director is authorized to take disciplinary action pursuant to section 12-235-112 against any person who has:
(a) Advertised, represented, or held himself or herself out as a licensed massage therapist after the expiration, suspension, or revocation of his or her license;
(b) Engaged in a sexual act with a client while a therapeutic relationship exists. For the purposes of this subsection (1)(b):
(I) Sexual act means sexual contact, sexual intrusion, or sexual penetration as defined in section 18-3-401.
(II) Therapeutic relationship means the period of time commencing with the initial session of massage and ending upon written termination of the relationship from either party.
(c) Failed to refer a patient to a general health-care practitioner when the services required by the client are beyond the level of competence of the massage therapist or beyond the scope of massage practice;
(d) Falsified information in any application; attempted to obtain or obtained a license by fraud, deception, or misrepresentation; engaged in fraud, misrepresentation, deception, or cheating in taking or furnishing the results of the examination required by section 12-235-108 (1)(b); or had the person's score on the examination required by section 12-235-108 (1)(b) invalidated by the testing provider because the person was determined to have cheated or engaged in fraud, misrepresentation, or deception in taking the examination;
(e) Fraudulently obtained or furnished a massage therapy license; a renewal or reinstatement of a license, diploma, certificate, or record; or aided and abetted any of those acts;
(f) A substance use disorder, as defined in section 27-81-102, or a dependence on or addiction to alcohol or any habit-forming drug, or who abuses or engages in the habitual or excessive use of any habit-forming drug or any controlled substance as defined in section 18-18-102 (5), but the director may take into account the licensee's participation in a substance use disorder treatment program when considering disciplinary action;
(g) (I) Failed to notify the director of a physical condition, physical illness, or behavioral, mental health, or substance use disorder that affects the licensee's ability to treat clients with reasonable skill and safety or that may endanger the health or safety of clients receiving massage services from the licensee;
(II) Failed to act within the limitations created by a physical illness, physical condition, or behavioral, mental health, or substance use disorder that renders the licensee unable to practice massage therapy with reasonable skill and safety or that may endanger the health or safety of persons under his or her care; or
(III) Failed to comply with the limitations agreed to under a confidential agreement entered pursuant to sections 12-30-108 and 12-235-117;
(h) Refused to submit to a physical or mental examination when so ordered by the director pursuant to section 12-235-114;
(i) Failed to notify the director, in writing, of the entry of a final judgment by a court of competent jurisdiction in favor of any party and against the licensee for malpractice of massage therapy or any settlement by the licensee in response to charges or allegations of malpractice of massage therapy. The notice shall be given within ninety days after the entry of the judgment or settlement and, in the case of a judgment, shall contain the name of the court, the case number, and the names of all parties to the action.
(j) Been convicted of, pled guilty or nolo contendere to, or received a deferred sentence for a felony or a crime for which the act giving rise to the crime was related to the practice of massage therapy or was perpetrated against a massage client during a therapeutic relationship, as defined in subsection (1)(b)(II) of this section; or committed any act specified in this section. A certified copy of a document from a court of competent jurisdiction documenting a conviction or entry of a plea is conclusive evidence of the conviction or plea. In considering the disciplinary action, the director shall be governed by the provisions of sections 12-20-202 (5) and 24-5-101.
(k) Advertised, represented, held himself or herself out in any manner, or used any designation in connection with his or her name as a massage therapist without being licensed or exempt pursuant to this article 235;
(l) Violated or aided or abetted a violation of any provision of this article 235, an applicable provision of article 20 or 30 of this title 12, any rule adopted under this article 235, or any lawful order of the director;
(m) Been convicted of, pled guilty or nolo contendere to, or received a deferred sentence for a charge of unlawful sexual behavior as defined in section 16-22-102, any prostitution-related offense, or any human-trafficking-related offense as described in sections 18-3-503 and 18-3-504, whether or not the act was committed in Colorado;
(n) Failed to report to the director the surrender of a massage therapy license, certification, or registration to, or an adverse action taken against a license, certification, or registration by, a licensing agency in another state, territory, or country, a governmental agency, a law enforcement agency, or a court for acts that constitute grounds for discipline under this article 235;
(o) Committed an act that does not meet, or failed to perform an act necessary to meet, generally accepted standards of massage therapy care;
(p) Used fraudulent, coercive, or dishonest practices, or demonstrated incompetence or untrustworthiness, in this state or elsewhere; or
(q) Exposed an intimate part of his or her body to the view of a client or any person present with the client, or performed an act of masturbation in the presence of a client. For the purposes of this subsection (1)(q):
(I) Intimate part means the external genitalia, the perineum, the anus, the buttocks, the pubes, or the breast of any person.
(II) Masturbation means the real or simulated touching, rubbing, or otherwise stimulating of a person's own genitals or pubic area, regardless of whether the genitals or pubic area is exposed or covered.
Source: L. 2019: Entire title R&RE with relocations, (HB 19-1172), ch. 136, p. 1161, � 1, effective October 1. L. 2020: (1)(f) amended, (SB 20-007), ch. 286, p. 1411, � 33, effective July 13. L. 2022: (1)(d) amended, (HB 22-1226), ch. 85, p. 410, � 4, effective September 1.
Editor's note: This section is similar to former � 12-35.5-111 as it existed prior to 2019.
12-235-112. Disciplinary proceedings - injunctions - investigations - hearings - judicial review - fine. (1) The director may take disciplinary or other action as authorized in this section and section 12-20-404 upon proof that the person committed a violation of section 12-235-111.
(2) The director may seek an injunction in accordance with section 12-20-406 to enjoin any person from engaging in or aiding and abetting an act or practice prohibited by this article 235.
(3) The director is authorized to investigate, hold hearings, and gather evidence in all matters related to the exercise and performance of the powers and duties of the director pursuant to article 4 of title 24, section 12-20-403, and this article 235.
(4) An employer of a massage therapist shall report to the director any disciplinary action taken against the massage therapist or the resignation of the massage therapist in lieu of disciplinary action for conduct that violates this article 235.
(5) On completion of an investigation, the director shall find one of the following:
(a) The complaint is without merit and no further action need be taken with reference thereto;
(b) There is no reasonable cause to warrant further action; or
(c) The complaint discloses misconduct by the licensee that warrants formal action, in which case the director shall initiate disciplinary proceedings pursuant to subsection (6) of this section.
(6) (a) The director shall commence a disciplinary proceeding when the director has reasonable grounds to believe that a licensee has committed any act that violates section 12-235-111.
(b) Disciplinary proceedings shall be conducted pursuant to section 12-20-403.
(c) If, after the hearing, the director finds the charges proven and orders that discipline be imposed, the director shall also determine the extent of the discipline. The director may take disciplinary action as specified in section 12-20-404 (1)(b) or (1)(d).
(d) If the director finds the charges against the licensee proven and orders that discipline be imposed, the director may require, as a condition of reinstatement, that the licensee take therapy or courses of training or education as may be needed to correct any deficiency found.
(7) Section 12-20-408 governs judicial review of a final action of the director. Judicial proceedings for the enforcement of an order of the director may be instituted in accordance with section 24-4-106.
(8) The director may send a letter of admonition to a licensee under the circumstances specified in and in accordance with section 12-20-404 (4).
(9) The director may send a confidential letter of concern to a licensee under the circumstances specified in section 12-20-404 (5).
(10) If a person commits an act that violates this article 235, the director may impose a fine not to exceed five thousand dollars per violation. Each day of a continuing violation constitutes a separate violation.
Source: L. 2019: Entire title R&RE with relocations, (HB 19-1172), ch. 136, p. 1163, � 1, effective October 1.
Editor's note: This section is similar to former � 12-35.5-112 as it existed prior to 2019.