BILL ANALYSIS
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|SENATE RULES COMMITTEE | SB 412|
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UNFINISHED BUSINESS
Bill No: SB 412
Author: Figueroa (D)
Amended: 8/24/06
Vote: 21
SENATE BUSINESS, PROF. & ECON. DEV. COMM. : 4-1, 4/25/05
AYES: Figueroa, Campbell, Florez, Murray
NOES: Morrow
NO VOTE RECORDED: Aanestad, Simitian
SENATE APPROPRIATIONS COMMITTEE : 8-3, 5/9/05
AYES: Migden, Aanestad, Alquist, Escutia, Florez, Murray,
Ortiz, Speier
NOES: Ashburn, Battin, Poochigian
NO VOTE RECORDED: Bowen, Dutton
SENATE FLOOR : 28-11, 5/31/05
AYES: Aanestad, Alarcon, Alquist, Campbell, Cedillo,
Chesbro, Ducheny, Dunn, Escutia, Figueroa, Florez, Kehoe,
Kuehl, Lowenthal, Machado, Maldonado, Margett, Migden,
Murray, Ortiz, Perata, Romero, Scott, Simitian, Soto,
Speier, Torlakson, Vincent
NOES: Ackerman, Ashburn, Battin, Cox, Denham, Dutton,
Hollingsworth, McClintock, Morrow, Poochigian, Runner
NO VOTE RECORDED: Bowen
ASSEMBLY FLOOR : Not available
SUBJECT : Massage therapy
SOURCE : Author
CONTINUED
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DIGEST : This bill creates the Massage Therapy
Organization (MTO) and provides for the certification of
massage therapists and massage practitioners by the MTO.
Assembly Amendments make numerous substantial additions
which revamp the bill to (1) clarify the membership, duties
and enforcement responsibilities of the MTO, (2) clarify
the requirements massage therapist and massage
practitioners must meet prior to being issued a
certificate, (3) clarify that local governments may subject
a massage business to reasonable inspections to verify
conformance with local ordinance and specify that nothing
in this bill shall restrict a local government from
regulating an individual not certified by the MTO, and (4)
state that "massage" does not include specified practices.
ANALYSIS :
Existing law:
1. Authorizes a city or county to adopt an ordinance which
provides for the licensing for regulation of the
business of massage when carried on within the city or
county.
2. Specifies that the ordinance may require reasonable
standards which may include, but need not be limited to
the age and education and experience of massage
personnel, passage of a practical examination of
competence, sanitary conditions of the establishment,
hours of operation of the business, prohibition of the
sale or serving of food or drink, or conducting
non-massage business on the premises.
3. Permits local agencies to deny massage licenses to
persons who have been convicted of crimes such as
pandering, prostitution, or sales of narcotics, and to
persons who are required to register as sex offenders.
This bill:
1. Establishes the MTO which is to be governed by a board
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of directors (board). The initial board shall seek tax
exempt status from the Internal Revenue Service and
shall solicit input from the massage community
concerning the operation of the MTO.
2. Provides that the board shall include the following
members, should each entity choose to exercise its right
to be represented on the board:
A. Two representatives from each professional massage
society, association, or other entity that has a
membership in California of at least 1,000
individuals for the last three years and that
requires its members to abide by a code of ethics.
B. One representative from each statewide association
of private postsecondary schools incorporated on or
before July 1, 2007, whose member schools have
graduated at least 1,000 students in massage therapy
in each of the previous three years.
C. A person selected by the League of California
Cities.
D. A person selected by the California State
Association of Counties.
E. A person selected by the Chief of the Bureau for
Private Postsecondary and Vocational Education
(BPPVE).
3. Provides that the MTO's bylaws shall establish a process
by which additional board members may be selected.
4. Provides that the board shall establish certification
fees that are reasonably related to the cost of
providing services and carrying out its ongoing
responsibilities and duties.
5. Requires the MTO to issue a "massage practitioner"
certificate authorizing the holder to perform massage
services in any jurisdiction in the state to an
individual who submits a written application and
provides satisfactory evidence that he or she meets all
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of the following requirements:
A. Is 18 years of age or older.
B. Has successfully completed, at a single approved
school, curricula in specified massage and related
subjects totaling a minimum of 250 hours.
C. Has paid all fees required by the MTO.
6. Provides that, after December 31, 2012, no new "massage
practitioner" certificates shall be issued by the MTO,
however, the MTO shall continue to renew "massage
practitioner" certificates obtained prior to this date
so long as the holder continues to meet specified
qualifications.
7. Requires the MTO to issue a "massage therapist"
certificate authorizing the holder to perform massage
services in any jurisdiction in the state to an
individual who submits a written application and
provides satisfactory evidence that he or she meets all
of the following requirements:
A. Is 18 years of age or older.
B. Has either (1) successfully completed specified
curricula in massage and related subjects totaling a
minimum of 500 hours, or (2) passed an examination
that has been approved by the MTO.
C. Has paid all fees required by the MTO.
8. Requires the MTO to issue a certificate to an applicant
who meets specified requirements and who holds a current
and valid registration, certification, or license from
any other state whose licensure requirements meet or
exceed those listed in #5 and #7 above.
9. Provides that a certification issued by the MTO shall be
subject to renewal every two years as prescribed by the
MTO. The MTO may provide for the late renewal of a
certification.
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10.Provides that the MTO shall determine whether or not a
school provides education that meets the requirements of
certification and requires the MTO to investigate, if
there is reason to do so, whether or not an applicant
for certification has actually completed the education
he/she claims in his/her application. The MTO shall
have the authority to take the necessary actions to
investigate an applicant's claims.
11.Provides that the MTO may not issue any certificates
prior to July 1, 2007.
12.Provides that, as of July 1, 2007, the MTO shall obtain
fingerprints, which may be in an electronic format, from
an applicant for certification as a massage therapist or
massage practitioner for the purpose of conducting a
criminal background check. The Department of Justice
(DOJ) shall provide the MTO with the specified
information relating to an applicant's criminal history.
13.Provides that the MTO and DOJ shall assess a fee
sufficient to cover the cost of processing the criminal
background check.
14.Requires the MTO to request subsequent arrest
notification from DOJ for all certificate holders.
15.Provides that the MTO may discipline a certificate
holder by any, or a combination of, the following
methods: (a) probation, (b) certificate suspension, (c)
certificate revocation, (d) conditional certificate
suspension, and (e) any other appropriate action.
16.Requires the MTO to suspend a certificate if the holder
has been arrested and charged with any sexually related
or prostitution-related crime and to notify the holder
and his/her employer of the suspension. If the charges
result in a conviction, the MTO shall permanently revoke
the certification, however, if the holder is acquitted
of the charges, the MTO shall re-instate the
certification.
17.Requires the MTO to provide specified information
regarding certificate holders to any local law
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enforcement or other agency that regulates massage
therapy. Likewise, the MTO shall accept and review any
information pertaining to a certificate holder provided
by a local law enforcement or other agency that
regulates massage therapy.
18.Requires a certificate holder to notify the MTO of
his/her home and business address. The certificate
holder shall report any change in either of these
addresses to the MTO within 30 days.
19.Provides for various grounds for discipline against a
certificate holder or for denial of a certificate to an
applicant, including (a) unprofessional conduct, (b)
procurement of a certificate by fraud,
misrepresentation, or mistake, (c) conviction of any
felony, or conviction of any misdemeanor substantially
related to the qualifications, functions, or duties of a
certificate holder (d) committing any fraudulent,
dishonest, or corrupt act that is substantially related
to the qualifications, functions, or duties of a
certificate holder, and (e) committing any act
punishable as a sexually related crime.
20.Authorizes the MTO, prior to January 1, 2009, to issue a
massage practitioner certificate to an individual who
provides sufficient documentation demonstrating he/she
meets one of the following set of requirements:
A. Holds a valid massage permit or license from a
California city or county, has completed at least a
100 hour course in massage, has been practicing for
at least three years, and has provided at least 1,000
hours of massage to members of the public for
compensation.
B. Has completed at least a 100 hour course in
massage, has been practicing for at least three
years, and has provided at least 1,750 hours of
massage to members of the public for compensation.
C. Holds a current valid certificate of authorization
as an instructor at a BPPVE-approved school or is a
massage instructor at a school accredited by an
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agency recognized by the United States Department of
Education.
21.Authorizes the MTO, prior to January 1, 2009, to issue a
conditional certificate to a massage practitioner who
has completed at least a 100 hour course in massage, but
has not completed the required number of practice hours
specified in #20 above.
22.Requires an applicant for a conditional certificate to
complete 30 hours of additional education per year, at
specified schools, until he/she has completed a total of
250 hours of education.
23.Provides that it is an unfair business practice for any
person to hold oneself out as, or use the title of,
"certified massage therapist," "certified massage
practitioner," or any other term such as "licensed,"
"registered," or "CMT" that implies that the person is
certified as a massage therapist or practitioner without
holding a valid certificate issued by the MTO.
24.Provides that it is a misdemeanor punishable by up to 90
days in county jail and up to a $200 fine for holding
oneself out as, or using the titles of, "certified
massage therapist," "certified massage practitioner," or
any other term such as "licensed," "registered," or
"CMT" that implies certification, without possessing a
valid certificate issued by the MTO. Provides that a
superior court may issue an injunction or other
appropriate restraining order against an individual
acting in violation of the provisions of this bill.
25.Provides that the holder of a certificate issued by the
MTO shall be able to practice massage in any city,
county, or city and county, and shall not be subject to
any ordinance enacted by any local government that
regulates individuals practicing massage.
26.Provides that a local government may not subject a
massage business to unique or special business license
requirements, business licensing fees, zoning
requirements, building code or physical facility
requirements if the business is a sole proprietorship
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owned by a person certified by the MTO and, for the
purposes of providing massage services, employs only
individuals certified by the MTO. A local government
may charge a massage business a licensing fee sufficient
to cover business licensing activities.
27.Provides that a local government may adopt reasonable
health and safety requirements with respect to massage
establishments or businesses, but may not impose
additional licensing or certification requirements upon
an individual certified by the MTO.
28.Provides that an operator of a massage business that is
certified by the MTO and/or uses only individuals
certified by the MTO shall be responsible for the
conduct of his/her employees and shall be subject to
suspension of any required local business license or
permit if violations of this bill or a local ordinance
occur.
29.Provides that a local government may subject a massage
business to reasonable inspections to verify conformance
with local ordinances and fire, health, and safety
requirements. A local government may also require the
operator of a massage business to notify it of any
change in business name, management, or transfer of
ownership to another person.
30.Provides that nothing in this bill shall restrict a
local government from regulating an individual not
certified by the MTO.
31.Provides that nothing in this bill is intended to affect
the practice rights of any person licensed by this state
or to grant any individual certified by the MTO any
additional practice rights not enumerated in this bill.
32.Subjects the MTO to the "sunset review process"
conducted by the Joint Committee on Boards, Commissions,
and Consumer Protection (Joint Committee).
33.Requires the MTO to report to the Joint Committee by
September 1, 2011.
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34.Provides that the provisions of this bill shall sunset
on January 1, 2013, unless a later enacted statute
extends that date.
35.Defines "approved school" or "approved massage school"
as a facility that meets minimum standards for training
and curriculum in massage and related subjects and that
is approved by BPPVE, by a college or university of the
state higher education system, or by a school of equal
or greater training that is approved by the appropriate
agency in another state or that is accredited by an
agency recognized by the United States Department of
Education.
36.Defines "compensation" as the payment, loan, advance,
donation, contribution, deposit, or gift of money or
anything of value.
37.Defines "massage" as the application of a system of
structured touch, pressure, movement, and holding to the
soft tissues of the human body with the purpose of
positively affecting the health and well being of a
client. "Massage" also includes the external
application of water, heat, cold, lubricants, salt
scrubs, or other topical preparations, and the use of
devices that mimic or enhance the actions of the hands.
38.Provides that "massage" does not include the
prescription of drugs, the diagnosis of illness or
disease, or any practice for which a license to practice
medicine, chiropractic, physical therapy, podiatry, or
any other profession is required. "Massage" also does
not include:
A. Touching that is done as part of movement
education, energy balancing, or any other incidence
where soft tissue manipulation is incidental to a
practice.
B. Touching that is done while engaging in the
practice of another somatic technique, profession, or
modality with established standards and ethics so
long as these services are not designated as massage
or massage therapy.
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C. Moving a joint beyond an individual's normal
physiological range of motion, or using a fast, low
amplitude thrust.
39.Defines "massage therapist," "bodyworker," "bodywork
therapist," "massage and bodywork therapist," "massage
practitioner," "bodywork practitioner," and "massage and
bodywork practitioner" as a person certified by the MTO
and who administers massage for compensation.
FISCAL EFFECT : Appropriation: No Fiscal Com.: Yes
Local: Yes
According to the Senate Appropriations Committee:
Fiscal Impact (in thousands)
Major Provisions 2005-06 2006-07 2007-08 Fund
Certification Program $450, or more per
yearPrivate
SUPPORT : (Verified 8/28/06)
American Massage Therapy Association, California Chapter
OPPOSITION : (Verified 8/28/06)
California Chiropractic Association
California Physical Therapy Association
ARGUMENTS IN SUPPORT : According to the author's office,
this bill shifts regulation of the massage therapy
profession from the city and county level to the state
level.
During the past months through the sunrise process, the
Joint Committee has studied this issue and on April 12,
2005, recommended that regulation of massage therapists
should be shifted from the current local jurisdiction
approach to a state-based approach to provide for more
uniform standards. It was also recommended that the
state-based approach should be flexible enough to serve the
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needs of the public, the profession, as well as the
legitimate interests of the local governments who currently
use existing law for legitimate public policy purposes.
This bill reflects those recommendations and is the first
step towards making the shift in the regulation of massage
therapy.
JJA:mel 8/30/06 Senate Floor Analyses
SUPPORT/OPPOSITION: SEE ABOVE
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