Can North Carolina's Massage and Bodywork Therapy Board require massage schools to post a guaranty bond as a condition of approval, charge schools fees for the approval process, and require approval as a prerequisite to operating?
Plain-English summary
The North Carolina Board of Massage and Bodywork Therapy regulates a profession that the General Assembly placed under state licensure in 1998 (with the Massage and Bodywork Therapy Practice Act, codified at N.C. Gen. Stat. §§ 90-620 et seq.). To become a licensed massage therapist, an individual has to complete a minimum 500-hour education program at a Board-approved school. This makes "Board-approved school" a meaningful regulatory category, even though the schools themselves do not need state authorization to teach.
In 2000, the Board asked the AG three questions about the scope of its authority over schools.
(1) Can the Board require approved schools to post a guaranty bond?
The AG said no. A guaranty bond is a financial security mechanism that protects students or the public against school failures (school closes mid-term, fails to provide promised education, defaults on tuition refund obligations). Some school-licensing statutes in North Carolina expressly require bonds (for example, N.C. Gen. Stat. § 115D-95 for proprietary schools). The Massage and Bodywork Therapy Practice Act contains no such bonding requirement.
Could the Board impose a bonding requirement by rule, as part of its general rulemaking authority under § 90-626(9)? The AG said no, citing N.C. Gen. Stat. § 12-3.1. That statute states that "a legislative grant of authority to an agency to make and promulgate rules shall not be construed as a grant of authority to establish by rule a fee or charge for rendering of any service or fulfilling of any public duty without express provision for such authority." A guaranty bond requirement is functionally a "charge" imposed by rule. The Board cannot impose it without express statutory authorization.
(2) Can the Board charge a fee for school approval and auditing?
The AG said yes. N.C. Gen. Stat. § 90-626(8) expressly authorizes the Board to "establish reasonable fees" for services it provides. School approval and auditing are services the Board provides. Reasonable fees are within the explicit statutory authority.
(3) What's the difference between "licensing" a school and "approving" a school?
The AG explained that the terms operate in different ways. Licensing makes lawful conduct that would otherwise be unlawful. If schools were "licensed" by the Board, a school could not teach massage therapy without first obtaining a license, because the requirement of obtaining a license is a prerequisite to engaging in the licensed activity. (The Act uses this licensing model for individual therapists: N.C. Gen. Stat. § 90-623(a) provides that a person "shall not practice" massage therapy without a Board license.)
Approving is different. Approval signifies the Board's consent to accept the classroom hours of a school's students for purposes of individual licensure. A school can teach massage therapy without Board approval; students will simply not get to count their hours toward the 500-hour education requirement when they later apply for a therapist license. So the practical consequence of not seeking approval is reduced student demand, not a legal bar on operation.
The opinion noted that the legal requirements for licensing vs. approving are statutory and vary across regulated activities. Child care facility licensing under § 110-85 et seq. is detailed; nursing home licensing under § 131E-100 et seq. is less detailed. The Board of Massage and Bodywork Therapy's approval authority is governed by the Act's general guidelines and any rules the Board adopts within those guidelines.
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. The North Carolina Massage and Bodywork Therapy Practice Act has been amended multiple times since 2000, including changes to the school approval framework and required hours. Anyone working with a massage therapy school approval question today should consult the current Act, the Board's current rules (21 NCAC Chapter 30), and any recent Board guidance.
Background and statutory framework
Why the Practice Act exists. Until 1998, massage therapy in North Carolina was unregulated at the state level. The General Assembly's findings in N.C. Gen. Stat. § 90-621 recognized that improper practice was potentially harmful to the public (improperly trained massage therapists can injure clients through inappropriate techniques, fail to recognize medical contraindications, or violate appropriate boundaries). The Act created the Board, established individual licensure for therapists, and required a minimum 500-hour education at a Board-approved school as a licensure prerequisite.
The structure of school approval. Under N.C. Gen. Stat. § 90-631, the Board "shall establish rules for the approval of massage and bodywork therapy schools." The required rule content includes curriculum standards, faculty standards, learning resource standards, change-reporting requirements, and the approval process. The Act mandates that the Board "approve any applicant school meeting its criteria." This is a deferential standard: the Board cannot exercise unreviewable discretion to deny approval to compliant schools.
The fee-imposition limit in § 12-3.1. N.C. Gen. Stat. § 12-3.1 is a general statutory construction rule that constrains state agencies. It provides that legislative grants of rulemaking authority do not include authority to charge fees unless the legislature expressly grants that authority. The statute reflects a principle that fee impositions on regulated entities are a particularly sensitive form of agency action and require explicit legislative authorization. The 2000 opinion's application of § 12-3.1 to the proposed bonding requirement is a sensible extension of the same principle: if rulemaking authority does not include fee authority without express provision, it also does not include bonding authority without express provision.
The licensing-vs-approval distinction in administrative law. The AG's analysis tracks a standard administrative law distinction. A "license" or "permit" is a prerequisite to lawful conduct; engaging in the regulated activity without one is unlawful. An "approval" or "certification" or "endorsement" is typically permissive; engaging in the activity without the approval is lawful but may have collateral consequences (loss of insurance reimbursement, loss of accreditation, loss of student credit, etc.). The General Assembly chose the approval model for massage schools rather than the licensing model, and the AG enforces that choice.
The economic incentive structure. Because Board approval determines whether a school's students can earn licensure-credit hours, and because there is no shortage of demand for massage therapy licensure, schools have a strong economic incentive to seek approval. A school that does not seek approval will struggle to attract students. The Board's authority over schools is therefore practically substantial even if it is legally permissive rather than mandatory. The General Assembly chose this market-driven enforcement mechanism rather than the heavier-handed licensing model.
The compare-and-contrast with § 115D-95. The opinion's reference to N.C. Gen. Stat. § 115D-95 is instructive. That statute expressly requires proprietary schools to post bonds, in language the General Assembly chose specifically because it wanted bonded protection in that context. The Massage and Bodywork Therapy Practice Act does not include a similar provision. When the General Assembly wants bonding, it says so. The absence of similar language in the Act is meaningful.
Comparable child-care and nursing-home regimes. The opinion's reference to N.C. Gen. Stat. § 110-85 et seq. (child care) and § 131E-100 et seq. (nursing homes) illustrates that the level of statutory specificity around licensing varies widely. Child care facilities are subject to detailed licensing standards because the General Assembly considered child safety to justify detailed regulation. Nursing homes are also licensed but with somewhat less detailed statutory specification. Massage schools fall on the less-regulated end: approval, not licensing, with statutory criteria sketched in general terms and details left to Board rules.
The implicit-vs-explicit authority canon. The 2000 opinion reflects a strong canon: agency authority over private parties (especially financial obligations like bonds or fees) must be grounded in explicit statutory authorization. Implicit authority arguments lose. This is a recurring theme in North Carolina administrative law and reflects general principles about democratic accountability for regulatory burdens. The General Assembly, not unelected agency boards, decides what financial obligations to impose on regulated industries.
Common questions
Q: Can the North Carolina Massage Board require my massage school to post a bond before approval?
A: No, not under the 2000 AG opinion. The Board has no express statutory authority to require bonds, and N.C. Gen. Stat. § 12-3.1 prevents the Board from imposing such a charge by rule without express legislative grant. The Board can require curriculum standards, faculty qualifications, and similar non-financial criteria, but it cannot require a guaranty bond.
Q: Can the Board charge my massage school a fee for the approval process?
A: Yes. N.C. Gen. Stat. § 90-626(8) expressly authorizes the Board to establish reasonable fees for services. Approval and auditing are services. The Board cannot charge unreasonable or excessive fees, but reasonable fees are well within its authority.
Q: What happens if I run a massage school in North Carolina without Board approval?
A: You can lawfully operate. The Board does not license schools; it approves them. But your students will not receive credit for the classroom hours they take at your school when they later apply for individual massage therapist licensure under N.C. Gen. Stat. § 90-629(4). Because the 500-hour education requirement is the gating step for licensure, students intending to become licensed therapists will not enroll at non-approved schools. The economic incentive to seek approval is strong, even though it is not legally required.
Q: What does it take to get Board approval?
A: The Board's rules (currently in 21 NCAC Chapter 30) specify curriculum content, faculty qualifications, learning resources, reporting requirements, and the approval process. The Act requires the Board to approve applicant schools that meet the criteria, so the process is structured to be relatively predictable for compliant applicants. Specific application requirements should be checked against the current Board rules.
Q: What's the difference between "licensing" and "approval" in North Carolina regulatory practice generally?
A: Licensing makes conduct lawful that would otherwise be unlawful. You cannot lawfully practice law, medicine, or massage therapy in North Carolina without a license. Approval (or certification or endorsement) is permissive: you can engage in the activity without approval, but the approval signals quality or unlocks related benefits (insurance reimbursement, student credit, etc.). The General Assembly chooses one mechanism or the other depending on the regulatory goal.
Q: Can the General Assembly add a bonding requirement for massage schools?
A: Yes. The General Assembly can amend the Practice Act to require bonds, or to require any other school qualifications it considers necessary. The 2000 AG opinion's holding is that the Board cannot impose a bond by rule without statutory authorization, not that bonds could never be required. Legislative amendment would change the answer.
Citations
Statutes
- N.C. Gen. Stat. §§ 90-620 et seq. — North Carolina Massage and Bodywork Therapy Practice Act.
- N.C. Gen. Stat. § 90-621 — legislative findings; improper practice harmful to public.
- N.C. Gen. Stat. § 90-623(a) — person shall not practice or hold out as a massage and bodywork therapist without a Board license.
- N.C. Gen. Stat. § 90-625(a) — improper practice harmful.
- N.C. Gen. Stat. § 90-626(8) — Board authority to establish reasonable fees.
- N.C. Gen. Stat. § 90-626(9) — Board rulemaking authority including rules related to school approval.
- N.C. Gen. Stat. § 90-629(4) — licensure applicants must have completed 500 classroom hours at a Board-approved school.
- N.C. Gen. Stat. § 90-631 — Board's authority to establish school approval rules; required rule content.
- N.C. Gen. Stat. § 12-3.1 — legislative rulemaking grants do not include fee/charge authority without express provision.
- N.C. Gen. Stat. § 115D-95 — bond expressly required of proprietary schools (contrast).
- N.C. Gen. Stat. § 110-85 et seq. — detailed licensing of child care facilities (contrast).
- N.C. Gen. Stat. § 131E-100 et seq. — licensing of nursing homes (contrast).
Source
Original opinion text
Re: Advisory Opinion; Powers of North Carolina Board of Massage and Bodywork Therapy; N.C. Gen. Stat. §§ 90-620 et seq.
Dear Mr. Wilkins:
You have requested an advisory opinion on behalf of the North Carolina Board of Massage and Bodywork Therapy (the "Board") concerning two issues not addressed in our opinion dated March 15, 2000, and one issue requiring further clarification. The questions that you have addressed to this office are the following:
(1) Can the Board require a massage and bodywork therapy school, which it approves, to have a guaranty bond?
(2) Can the Board charge a reasonable fee for its approval and auditing of massage and bodywork therapy schools?
(3) What are the distinctions and legal requirements of "licensing" a massage and bodywork therapy school versus "approving" a massage and bodywork therapy school?
As you are undoubtedly aware, the Board was created by the North Carolina General Assembly in the North Carolina Massage and Bodywork Therapy Practice Act (the "Act"), N.C. Gen. Stat. §§ 90-620 et seq. (1999), in response to the General Assembly's recognition that the improper practice of massage and bodywork therapy is potentially harmful to the public. N.C. Gen Stat. §§ 90-621, 90-625(a) (1999). Among other things, the Act gives the Board the responsibility of overseeing the licensure of massage and bodywork therapists and the approval of massage and bodywork therapy schools. N.C. Gen. Stat. §§ 90-626, 90-629, 90-631 (1999).
So as to enable the Board to carry out these responsibilities, the Act gives the Board the power to "[a]dopt, amend or repeal any rules necessary to carry out the purposes of [the Act] and the duties and responsibilities of the Board, including rules related to the approval of massage and bodywork therapy schools. . ." N.C. Gen. Stat. § 90-626(9) (1999). In addition, the Act gives the Board the power to "[e]stablish reasonable fees" for the services provided by the Board. N.C. Gen. Stat. § 90-626(8) (1999). Consequently, it is our opinion that the Act gives the Board the power to charge a reasonable fee for its auditing and approval of massage and bodywork therapy schools.
We do not, however, interpret the Act to give the Board the power to require massage and bodywork therapy schools to post a guaranty bond as a condition of approval. The Act provides that the "Board shall establish rules for the approval of massage and bodywork therapy schools." N.C. Gen. Stat. § 90-631. These rules must include curriculum standards, standards for faculty and learning resources, requirements for reporting changes in instructional staff and curriculum, and a description of the process used by the Board to approve a school, and the Board is required to approve any applicant school meeting its criteria. N.C. Gen. Stat. § 90-631 (1999). Neither this section, nor any other provision of the Act, however, authorizes the Board to impose a bonding requirement as a condition of approval. It is our opinion that the posting of a guaranty bond may be required only upon appropriate authorization by the North Carolina General Assembly. See, e.g., N.C. Gen. Stat. § 115D-95 (bond expressly required of proprietary schools); see also N.C. Gen. Stat. § 12-3.1 (legislative grant of authority to agency to make and promulgate rules shall not be construed as grant of authority to establish by rule a fee or charge for rendering of any service or fulfilling of any public duty without express provision for such authority). Therefore, in the absence of such express authority, it is our opinion that the Board lacks the power to require the posting of such a bond.
Your third question inquires as to the difference between "licensing" a school and "approving" a school. The obtaining of a license is a requirement to engage lawfully in the activity. See generally Black's Law Dictionary 919-20 (6th ed. 1990). For example, the Act provides that a person "shall not practice or hold out himself or herself to others as a massage and bodywork therapist" without receiving a license to engage in massage and bodywork therapy from the Board. N.C. Gen. Stat. § 90-623(a) (1999) (emphasis added). Therefore, had the Board been delegated the authority to "license," as opposed to "approve," massage and bodywork therapy schools, such schools could not provide instruction in massage and bodywork therapy without first receiving a license from Board.
The "approving" of a massage and bodywork therapy school, however, is not a prerequisite to its legal operation, but merely signifies the Board's consent to accept the instructional classroom hours of students at these schools who are applying for licensure as a massage and bodywork therapist. See N.C. Gen. Stat. § 90-629(4) (applicants for licensure as massage and bodywork therapists must have completed a minimum of 500 classroom hours of supervised instruction at a Board-approved school). A school can teach massage and bodywork therapy without the Board's approval, but its students will not receive credit for classroom hours of instruction at that school when applying for a license. As a result, a school has an incentive to obtain approval from the Board if it wants to attract students intending to become licensed massage and bodywork therapists in North Carolina.
The legal requirements of "licensing" an entity and "approving" an entity are each statutory in nature and, therefore, vary according to the statutes at issue.
Compare, e.g., N.C. Gen. Stat. § 110-85 et seq. (detailed statutory requirements for licensing of child care facilities) with N.C. Gen. Stat. § 131E-100 et seq. (limited statutory requirements for licensing of nursing homes). As indicated above, the approval of massage and bodywork therapy schools is governed by the Act, which contains general guidelines, but few specific criteria, for obtaining such approval. Instead, the General Assembly authorized the Board to establish rules related to the approval — but not licensing — of massage and bodywork schools. Therefore, the legal requirements of "approving" massage and bodywork therapy schools are to be established by the Board within the guidelines set forth in the Act.
We hope that this advisory opinion is of assistance to the Board.
Signed by:
Grayson G. Kelley
Senior Deputy Attorney General
Thomas J. Ziko
Special Deputy Attorney General
Donald R. Esposito, Jr.
Assistant Attorney General