When NC created a Board of Massage and Bodywork Therapy in 1998, did the new board take over school licensing from the State Board of Community Colleges?

Plain-English summary

In 1998 NC passed a Massage and Bodywork Therapy Practice Act and created a Massage Board to license therapists and approve their training schools. Before that, the State Board of Community Colleges had been licensing massage therapy schools under Article 8 of Chapter 115D (the proprietary school law). With two boards now in the picture, the natural question was: who licenses the schools, the old Community Colleges Board or the new Massage Board?

The Massage Board had asked for the answer. So had the Community College System's general counsel. They jointly asked the AG, who delivered the answer through Senior Deputy AG Grayson G. Kelley, Special Deputy AG Thomas J. Ziko, and Assistant AG Donald R. Esposito, Jr.

The Community Colleges Board lost authority. Section 115D-88(4) of the General Statutes exempts from proprietary school licensing any school for which there is "another legally existing licensing or approving board or agency." The 1989 amendment had specifically broadened that exemption from "licensing board" to "licensing or approving board or agency." When the General Assembly created the Massage Board in 1998 and gave it the power to approve massage and bodywork therapy schools, the exemption kicked in. The Community Colleges Board lost both its authority and its obligation to license those schools. The legal effect was immediate.

The Massage Board can only approve, not license. Even though the Community Colleges Board lost its authority, the Massage Board didn't fully inherit it. The Practice Act gave the Massage Board approval power, but not licensing power. The AG concluded this didn't matter for the exemption: the statute is satisfied by an approving board, which the Massage Board is.

Schools that wanted to keep their old license couldn't. The opinion specifically addressed schools that preferred to remain under the Community Colleges Board's licensing regime. The AG concluded that they couldn't choose. Neither the schools nor the Community Colleges Board could confer authority on the Board that the General Assembly had taken away.

Community colleges teaching massage therapy. The AG concluded that community colleges offering massage and bodywork therapy courses are themselves treated as "massage and bodywork therapy schools" for Massage Board approval purposes. They have to seek Massage Board approval if they want their graduates to qualify for the state therapist license under § 90-629(4), which requires 500 classroom hours at a Massage Board-approved school. The Community Colleges Board does not need to license them as proprietary schools.

Drafting glitch in § 115D-88(5). The opinion flagged a textual oddity. Section 115D-88(5) (covering established universities and colleges) used the narrower "licensing board" language, while § 115D-88(4) used the broader "licensing or approving board." The AG concluded this was a drafting oversight, not intentional. The broader exemption flows through to subsection (5) too, so universities offering massage therapy courses also get the benefit of the broader exemption.

Currency note

This opinion was issued in 2000. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here. NC has amended both Chapter 115D and Chapter 90 several times since 2000. The Massage and Bodywork Therapy Practice Act has been revised, and the Community Colleges proprietary schools framework has evolved. The basic split (Massage Board approves schools, no Community Colleges Board license required) appears to have continued, but check the current text of §§ 115D-87 through 115D-98 and §§ 90-620 et seq. before relying on this opinion's specific provisions.

Background and statutory framework

1987 recodification. The General Assembly moved proprietary school licensing from the State Board of Education to the State Board of Community Colleges by recodifying former Article 40 of Chapter 115C as Article 8 of Chapter 115D. 1987 N.C. Sess. Laws ch. 442. Massage therapy schools were part of the recodified universe.

1989 amendment broadening the exemption. 1989 N.C. Sess. Laws ch. 877 added "or approving board or agency" to § 115D-88(4). Before the amendment, only schools with another licensing board were exempt. After, schools with an approving board were exempt too. The AG read this broadening as a deliberate legislative move to capture approval-only regulators in the exemption.

1998 Massage and Bodywork Therapy Practice Act. Codified at N.C. Gen. Stat. §§ 90-620 et seq. The act:
- Created the Massage Board (§ 90-625)
- Gave the Massage Board authority to license therapists (§§ 90-625 et seq.)
- Gave the Massage Board authority to approve schools and to maintain a list of approved schools (§§ 90-626(9), 90-631)
- Did NOT give the Massage Board authority to license schools
- Required 500 classroom hours of supervised instruction at a Massage Board-approved school as a prerequisite to therapist licensure (§ 90-629(4))

The act generally became effective on November 1, 1998, with §§ 90-623 and 90-634 effective July 1, 1999. 1998 N.C. Sess. Laws c. 230 s. 15.

Two exemption subsections, two slightly different phrasings.

Section 115D-88(4) (broader): "Any school for which there is another legally existing licensing or approving board or agency in this State."

Section 115D-88(5) (narrower, drafting oddity): "Any established university, professional, or liberal arts college, public or private school regulated or recognized pursuant to Chapter 115C of the General Statutes or by any other State Agency, or any State institution which has heretofore offered, or which may hereinafter offer one or more courses covered in this Article . . . but provisions of the Article shall apply to all business schools, proprietary trade schools, proprietary technical schools, or correspondence schools, as defined in this Article, and operated within the State of North Carolina as such institutions, except schools for which there are other legally existing licensing boards or agencies."

The AG read both subsections together using the cardinal rules of statutory construction from Burgess, Mazda Motors, and Frye Regional: plain meaning unless ambiguity or absurd result, then look to legislative intent. The AG concluded the General Assembly clearly meant to broaden the exemption uniformly in 1989 and that the apparent narrowness of (5) was an oversight.

Massage Board's power to approve but not license. The Practice Act used the word "approve" deliberately when discussing schools, and "license" for therapists. The AG noted the distinction but read § 115D-88(4) to cover either an approving or a licensing board, so the result was the same: exemption from proprietary-school licensing under Article 8.

Section 90-629(4)'s practical effect. Even though the Community Colleges Board lost school-licensing power, the Massage Board's school-approval power had real teeth because graduates of unapproved schools couldn't qualify for the state therapist license. Schools that wanted their graduates to be licensed therapists had to get Massage Board approval, even if they were not legally obligated to be licensed by anyone.

Common questions

Q: Did the Community Colleges Board lose all authority over massage and bodywork therapy schools in 1998?

A: The AG concluded yes, with respect to Article 8 licensing. The Community Colleges Board's licensing and oversight authority under § 115D-89 ended when the Massage Board came into existence with school-approval authority.

Q: Did massage and bodywork schools still have to be licensed by some agency?

A: The AG concluded they no longer had to be licensed under Article 8. They had to seek Massage Board approval if they wanted their students to qualify for therapist licensure under § 90-629(4), but they were exempt from the Community Colleges Board's licensing regime, including §§ 115D-95, 115D-96, and 115D-97.

Q: Could a school opt to stay under Community Colleges Board licensing if it preferred that regime?

A: The AG concluded no. Once § 115D-88(4) exemption was triggered, the Community Colleges Board lost authority. Schools could not confer authority on the Board that the General Assembly had taken away.

Q: What about community colleges offering massage therapy courses?

A: The AG concluded those community colleges are themselves "massage and bodywork therapy schools" for Massage Board approval purposes. They need Massage Board approval if they want their graduates to qualify for the state therapist license. They do not need a Community Colleges Board proprietary-school license (and may already be regulated by the Community Colleges Board through its general oversight of community college operations).

Q: What if a university offered massage therapy courses?

A: The AG concluded universities and similar established institutions get the benefit of § 115D-88(5)'s exemption for established universities, professional colleges, public schools, etc. Even though § 115D-88(5)'s wording mentions only "licensing boards" (not "licensing or approving boards"), the AG read § 115D-88(4)'s broader language to apply to all proprietary schools defined in Article 8, including universities described in (5).

Citations from the opinion

• N.C. Gen. Stat. §§ 115D-87, 115D-88, 115D-88(4), 115D-88(5), 115D-89, 115D-95, 115D-96, 115D-97
• N.C. Gen. Stat. §§ 90-620 et seq., 90-625, 90-626(9), 90-629(4), 90-631
• 1987 N.C. Sess. Laws ch. 442
• 1989 N.C. Sess. Laws ch. 877
• 1998 N.C. Sess. Laws ch. 230, s. 15
• Burgess v. Your House of Raleigh, Inc., 326 N.C. 205, 388 S.E.2d 134 (1990)
• Mazda Motors of Am., Inc. v. Southwestern Motors, Inc., 296 N.C. 357, 250 S.E.2d 250 (1979)
• State v. Barksdale, 181 N.C. 621, 107 S.E. 505 (1921)
• Frye Regional Medical Center, Inc. v. Hunt, 350 N.C. 39, 510 S.E.2d 159 (1999)

Source

• Landing page: https://ncdoj.gov/opinions/approval-and-licensing-of-massage-and-bodywork-therapy-schools/

Original opinion text

Reproduced from the NCDOJ landing page. The linked landing page is authoritative.

Re: Advisory Opinion; Approval and Licensing of Massage and Bodywork Therapy Schools; N.C. Gen. Stat. §§ 115D-88, 90-631

Dear Ms. Hines and Mr. Wilkins:

On behalf of the North Carolina Community College System and the North Carolina Board of Massage and Bodywork Therapy, respectively, you have each written to request this office's opinion on several issues relating to the approval and licensing of massage and bodywork therapy schools.

QUESTIONS PRESENTED

The questions that you have addressed to this office include the following:

(1) In view of the North Carolina Massage and Bodywork Therapy Practice Act, is the State Board of Community Colleges legally obligated to license massage and bodywork therapy schools and, if so, what is the scope of this responsibility?

(2) In view of the North Carolina Massage and Bodywork Therapy Practice Act, does the State Board of Community Colleges have the legal authority to license massage and bodywork therapy schools and, if so, what is the scope of this authority?

(3) Does N.C. Gen. Stat. § 115D-88(4) require the State Board of Community Colleges to immediately cease licensing massage and bodywork therapy schools?

(4) May the State Board of Community Colleges continue to license massage and bodywork therapy schools until the North Carolina Board of Massage and Bodywork Therapy is authorized to license massage and bodywork therapy schools?

(5) May the State Board of Community Colleges continue to license massage and bodywork therapy schools if massage and bodywork therapy schools do not want to be exempt under N.C. Gen. Stat. § 115D-88(4) and wish to continue being licensed by the State Board of Community Colleges?

(6) Should the State Board of Community Colleges be required to continue licensing massage and bodywork therapy schools until the North Carolina Board of Massage and Bodywork Therapy is authorized to license massage and bodywork therapy schools?

(7) If the State Board of Community Colleges does not have the legal authority to license massage and bodywork therapy schools, are massage and bodywork therapy schools nonetheless still subject to the requirements of Article 8 of Chapter 115D of the North Carolina General Statutes?

(8) Is there a conflict between N.C. Gen. Stat. § 115D-88(4) and N.C. Gen. Stat. § 115D-88(5) and, if so, which prevails?

(9) If the North Carolina Board of Massage and Bodywork Therapy is the board legally obligated to approve massage and bodywork therapy schools and programs, do massage and bodywork therapy programs offered by community colleges require approval of both the North Carolina Board of Massage and Bodywork Therapy and the State Board of Community Colleges and, if not, which board is legally obligated to approve these programs?

SUMMARIZED RESPONSE

As set forth below, it is the opinion of this office that, based upon the provisions of N.C. Gen. Stat. § 115D-88(4) and the creation of the North Carolina Board of Massage and Bodywork Therapy, the State Board of Community Colleges has neither the legal authority nor responsibility to license massage and bodywork therapy schools pursuant to Article 8 of Chapter 115D of the North Carolina General Statutes. The State Board of Community Colleges lacks such authority even if massage and bodywork therapy schools do not want to be exempt from Article 8 of Chapter 115D, and even though the North Carolina Board of Massage and Bodywork Therapy has only the authority to approve rather than license massage and bodywork therapy schools. In addition, it is our opinion that massage and bodywork therapy schools that are exempt from Article 8 of Chapter 115D need not comply with any of the requirements of Article 8, including the provisions of Sections 115D-95, 115D-96 & 115D-97 of the North Carolina General Statutes. Finally, it is our opinion that Article 8 does not require community colleges offering massage and bodywork therapy courses to be licensed by the State Board of Community Colleges, although these community colleges presumably are already subject to oversight by the State Board of Community Colleges. Community colleges offering massage and bodywork therapy courses must, however, obtain approval from the North Carolina Board of Massage and Bodywork Therapy if these community colleges want the students who complete these courses to qualify for licenses from the North Carolina Board of Massage and Bodywork Therapy.

DISCUSSION

State Board of Community Colleges Licensing of Proprietary Schools. As you are undoubtedly aware, the responsibility for licensing and supervising proprietary schools was transferred from the State Board of Education to the State Board of Community Colleges (the "Community Colleges Board") in 1987, when the former Article 40 of Chapter 115C of the North Carolina General Statutes was recodified as Article 8 of Chapter 115D of the North Carolina General Statutes. 1987 N.C. Sess. Laws ch. 442. These proprietary schools included schools offering instruction in massage and bodywork therapy that had previously been subject to licensing pursuant to the provisions of the former Article 40. Article 8 of Chapter 115D was subsequently amended by the North Carolina General Assembly in 1989, 1989 N.C. Sess. Laws ch. 877, but schools offering instruction in massage and bodywork therapy that were "proprietary business schools," "proprietary trade schools," "proprietary technical schools" or "correspondence schools" (hereinafter, "proprietary schools") continued to be licensed and supervised by the Community Colleges Board. See N.C. Gen. Stat. § 115D-89 (1999).

Article 8, however, exempts certain schools from its provisions. After the 1989 amendments to Article 8, Section 115-88 of the North Carolina General Statutes provides in relevant part:

It is the purpose of this Article to include all private schools operated for profit: Provided, that the following schools shall be exempt from the provisions of this Article:

(4) Any school for which there is another legally existing licensing or approving board or agency in this State. . . .

(5) Any established university, professional, or liberal arts college, public or private school regulated or recognized pursuant to Chapter 115C of the General Statutes or by any other State Agency, or any State institution which has heretofore offered, or which may hereinafter offer one or more courses covered in this Article: Provided, that the tuition fees and charges, if any, made by such university, college, high school, or State institution shall be collected by their regular officers in accordance with the rules prescribed by the board of trustees or governing body of such university, college, high school, or State institution; but provisions of the Article shall apply to all business schools, proprietary trade schools, proprietary technical schools, or correspondence schools, as defined in this Article, and operated within the State of North Carolina as such institutions, except schools for which there are other legally existing licensing boards or agencies.

N.C. Gen. Stat. § 115D-88 (1999).

Creation of the North Carolina Board of Massage and Bodywork Therapy. In 1998, the North Carolina General Assembly enacted the North Carolina Massage and Bodywork Therapy Practice Act (the "Act"), N.C. Gen. Stat. §§ 90-620 et seq., which created the North Carolina Board of Massage and Bodywork Therapy (the "Massage Board"). N.C. Gen. Stat. § 90-625 (1999). The Massage Board was given the responsibility of establishing rules for the approval of massage and bodywork therapy schools (i.e., schools that offer a training program in massage and bodywork therapy), of granting approval to schools that met its criteria, and of maintaining a list of approved schools. N.C. Gen. Stat. § 90-631 (1999); see also N.C. Gen. Stat. § 90-626(9) (1999) (gives the Massage Board the power to "[a]dopt, amend, or repeal any rules necessary to carry out the purposes of [Article 8] and the duties and responsibilities of the [Massage] Board, including rules related to the approval of massage and bodywork therapy schools . . ."). Notably, while the Act gave the Massage Board the authority to license massage and bodywork therapists, it did not give the Massage Board the authority to license massage and bodywork therapy schools.

Exemption of Proprietary Massage and Bodywork Therapy Schools from Article 8. Nonetheless, it is our opinion that the passage of the Act, which gave the Massage Board the authority to approve massage and bodywork therapy schools, operates to exempt proprietary massage and bodywork therapy schools from Article 8. As indicated above, proprietary schools otherwise subject to Article 8 are exempt if there is another legally existing licensing or approving board or agency in North Carolina. The fact that the Massage Board can approve massage and bodywork therapy schools is sufficient to trigger this exemption, even though the Massage Board lacks the authority to license such schools. Our opinion in this regard is bolstered by the 1989 amendments to Section 115D-88(4), in which the General Assembly explicitly added language broadening the exemption afforded by this section from schools for which there was another licensing board to schools for which there was another licensing or approving board or agency. 1989 N.C. Sess. Laws c. 877 s. 2.

It is our further opinion that, because massage and bodywork therapy schools are exempt from Article 8, the Community College Board has neither the legal obligation nor the legal authority to license such schools pursuant to the provisions of that article. The General Assembly removed this authority and obligation from the Community College Board when it enacted the Act. Moreover, in light of this action by the General Assembly, the Community College Board cannot continue to license massage and bodywork therapy schools pursuant to Article 8 even if the Community College Board desired to continue doing so or even if massage and bodywork therapy schools did not want to be exempt from Article 8. We believe that neither the Community College Board nor the massage and bodywork therapy schools can confer authority on the Community College Board that has been taken from it by the General Assembly.

Thus, it is the opinion of this office that Section 115D-88(4), in conjunction with the passage of the Act, immediately prevents the Community College Board from continuing to license massage and bodywork therapy schools pursuant to Article 8. Furthermore, it is our opinion that the exemption afforded to massage and bodywork therapy schools by Section 115D-88(4) likewise prevents massage and bodywork therapy schools from being subject to the other provisions of Article 8, including the provisions of Sections 115D-95, 115D-96 & 115D-97 of the North Carolina General Statutes.

Schools Covered by Section 115D-88(5). Section 115D-88(5) provides an additional exemption for established universities, professional colleges, liberal arts colleges, public schools or private schools (i) that are regulated or recognized pursuant to Chapter 115C (e.g., by the State Board of Education) or by any other state agency and (ii) that offer courses covered by Article. N.C. Gen. Stat. § 115D-88(5) (1999). Similarly, any state institution is generally exempt from Article 8 even though it offers courses covered by Article 8. Id. Section 115D-88(5) further states, however, that established universities, colleges, schools and state institutions offering courses subject to Article 8 are not exempt from regulation under Article 8 if they are in fact proprietary schools, as defined in Section 115D-87, and operate as such in North Carolina. Id.

Finally, Section 115D-88(5) states that even if an established university, college, school or state institution is a proprietary school, it is not subject to Article 8 if there is another licensing board or agency for that school. While the language in that exemption is not identical to the exemption set forth in Section 115D-88(4) — which exempts "schools for which there is another legally existing licensing or approving board or agency in this State" — it is our opinion that the distinction between those two exemptions is not meaningful.

The North Carolina Supreme Court has recently reiterated two important rules of statutory construction:

In interpreting a statute, we first look to the plain meaning of the statute. Where the language of a statute is clear, the courts must give the statute its plain meaning; however, where the statute is ambiguous or unclear as to its meaning, the courts must interpret the statute to give effect to the legislative intent. Burgess v. Your House of Raleigh, Inc., 326 N.C. 205, 388 S.E.2d 134 (1990). However, "'where a literal interpretation of the language of a statute will lead to absurd results, or contravene the manifest purpose of the Legislature, as otherwise expressed, the reason and purpose of the law shall control and the strict letter thereof shall be disregarded.'" Mazda Motors of Am., Inc. v. Southwestern Motors, Inc., 296 N.C. 357, 361, 250 S.E.2d 250, 253 (1979) (quoting State v. Barksdale, 181 N.C. 621, 625, 107 S.E. 505, 507 (1921)).

Frye Regional Medical Center, Inc. v. Hunt, 350 N.C. 39, 45, 510 S.E.2d 159, 163 (1999).

There is nothing in Section 115D-88(5) to indicate that the General Assembly meant to limit any proprietary school described in that subsection solely to the exemption described therein. Instead, the language of Section 115D-88(5) makes it clear that the proprietary schools subject to that subsection are the proprietary schools "defined in this Article." Insofar as there is nothing distinctive about the proprietary schools described in Section 115D-88(5) as compared to the proprietary schools generally subject to Article 8, the proprietary schools described in Section 115D-88(5) are also subject to all the exemptions afforded in Sections 115D-88(1) through (4c). One of these exemptions, of course, is Section 115D-88(4), which contains the broader language exempting schools for which there is a "licensing or approving board or agency." Consequently, it is our opinion that the Community College Board has no authority pursuant to Article 8 over any proprietary school that is subject to the authority of another "licensing or approving board or agency," and that the literal difference between the language of Section 115D-88(4) and Section 115D-88(5) is the result of a drafting oversight rather than any legislative intent to create a special, limited exemption for an undefined subclass of proprietary schools.

As a result, it is our opinion that if an established university, college, school or state institution that offers massage or bodywork therapy courses falls within the definition of a proprietary school, it is still entitled to the exemption in Section 115D-88(4) for schools for which there is another licensing or approving board or agency, or any other exemption set forth in Section 115D-88.

Community Colleges Offering Massage and Bodywork Therapy Courses. Finally, we believe that if a community college offers massage and bodywork therapy courses, it constitutes a massage and bodywork therapy school and will need to obtain approval from the Massage Board, in accordance with Section 90-631 of the North Carolina General Statutes. Otherwise, these courses will not satisfy the licensing requirements for massage and bodywork therapists, who must complete a course of study consisting of a minimum of 500 classroom hours of supervised instruction at a Massage Board-approved school. N.C. Gen. Stat. § 90-629(4) (1999). The General Statutes do not, however, identify any penalty for the failure of a massage and bodywork therapy school to obtain approval from the Massage Board. In addition, because the Massage Board does not have the authority to license massage and bodywork therapy schools, a community college offering massage and bodywork therapy courses need not obtain a license from the Massage Board.

We hope that this advisory opinion is of assistance to each of you.

Signed by:

Grayson G. Kelley, Senior Deputy Attorney General
Thomas J. Ziko, Special Deputy Attorney General
Donald R. Esposito, Jr., Assistant Attorney General