BILL ANALYSIS
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|SENATE RULES COMMITTEE | SB 731|
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UNFINISHED BUSINESS
Bill No: SB 731
Author: Oropeza (D)
Amended: 8/8/08
Vote: 21
SEN. BUSINESS, PROFESSIONS & ECON. DEV. CMTEE : 6-2,
4/23/07
AYES: Ridley-Thomas, Corbett, Denham, Florez, Simitian,
Yee
NOES: Aanestad, Harman
SENATE APPROPRIATIONS COMMITTEE : Senate Rule 28.8
SENATE FLOOR : 29-4, 5/31/07
AYES: Aanestad, Ackerman, Alquist, Calderon, Cedillo,
Corbett, Correa, Denham, Ducheny, Dutton, Florez, Kehoe,
Kuehl, Lowenthal, Machado, Maldonado, Migden, Negrete
McLeod, Oropeza, Padilla, Perata, Ridley-Thomas, Romero,
Runner, Scott, Steinberg, Torlakson, Vincent, Yee
NOES: Cox, Harman, McClintock, Wyland
NO VOTE RECORDED: Ashburn, Battin, Cogdill, Hollingsworth,
Margett, Simitian, Wiggins
ASSEMBLY FLOOR : 64-7, 8/13/08 - See last page for vote
SUBJECT : Massage therapy
SOURCE : American Massage Therapist Association,
California Chapter
CONTINUED
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DIGEST : This bill creates the Massage Therapist
Organization (MTO) and provides for the certification of
massage therapists and massage practitioners by the MTO.
Assembly Amendments added one member appointed by the
California Community College Chancellor's Office to the
Board of Directors of the MTO, specified that the meetings
of the MTO are subject to the rules of the Bagley-Keene
Open Meetings Act, specified that new massage practitioner
certificates issued pursuant to this bill shall not be
issued after December 31, 2015, specified that any
certificate applicant denial or certificate holder
discipline shall be done in good faith and in a fair and
reasonable manner, extended the sunset date from January 1,
2014 to January 1, 2016, and added intent language.
ANALYSIS :
Existing law:
1. Provides for the regulation and licensing of various
health arts professionals, including physicians and
surgeons, chiropractors, physical therapists, and
acupuncturists.
2. 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.
3. 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.
4. 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.
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This bill:
1. Creates the MTO and specifies that the MTO is a
nonprofit organization and is to be governed by a board
of directors (board) and may immediately begin issuing
certificates after adopting the necessary bylaws or
rules, but in no case may it issue certificates prior to
September 1, 2009.
2. Provides that the board shall include specified members,
should each entity, as specified, choose to exercise its
right to be represented on the board:
3. Specifies that the meetings of the MTO shall be subject
to the rules of the Bagley-Keene Open Meetings Act, as
specified.
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 and authorizes the board to
establish initial and renewal fees annually.
5. Requires the MTO to issue a "massage practitioner"
certificate after December 31, 2015, to an applicant who
submits a written application and provides satisfactory
evidence that he/she meets specified requirements:
6. Specifies that new massage practitioner certificates
issued pursuant to the requirements of this bill shall
not be issued after December 31, 2015.
7. Requires the MTO to issue a "massage therapist"
certificate to an applicant who submits a written
application and provides satisfactory evidence that
he/she meets all specified requirements:
8. Authorizes the MTO to issue a certificate to an
applicant who meets certain qualifications, as
specified, and holds a current and valid registration,
certification, or license from any other state whose
licensure requirements meet or exceed those defined
within this bill, and authorizes the MTO the discretion
to give credit for comparable academic work completed by
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an applicant in a program outside of California.
9. Provides that any certification issued shall be subject
to renewal every two years in a manner prescribed by the
MTO and shall expire unless renewed in that manner.
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
necessary, whether or not an applicant has actually
completed the education he or she claims in his or her
application, prior to issuing a certificate.
11.Provides that prior to issuing a certificate to the
applicant or designating a custodian of records the MTO
shall obtain fingerprints from an applicant for
certification as a massage therapist or massage
practitioner for the purpose of conducting a criminal
background check, and specifies that the Department of
Justice (DOJ) shall provide the MTO with the specified
information relating to an applicant's criminal history.
12.Provides that the MTO shall request subsequent arrest
notification service from the DOJ to conduct a search
for state and federal level criminal offender record
information.
13.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.
14.Requires the MTO to immediately suspend on an interim
basis 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 within 10 days of the suspension, and
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 within 10 days.
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15.Requires the MTO to provide specified information
regarding certificate holders to any local law
enforcement or other agency that regulates massage
therapy, and likewise the MTO shall accept and review
any information pertaining to a certificate holder
provided by local law enforcement or other agency that
regulates massage therapy.
16.Provides for various grounds for discipline against a
certificate holder or for denial of a certificate to an
applicant, including: unprofessional conduct,
procurement of a certificate by fraud, violating any
provisions of this bill or the MTO's bylaws, as
specified, conviction of a felony or misdemeanor
substantially related to their qualifications, functions
or duties, impersonating an applicant or acting as a
proxy for an applicant in any examination, impersonating
a certified practitioner, committing any fraudulent,
dishonest, or corrupt act that is substantially related,
or committing any act punishable as a sexually related
crime.
17.Specifies that any certificate applicant denial or
certificate holder discipline shall be done in good
faith and in a fair and reasonable manner, as specified.
18.Authorizes the MTO, prior to January 1, 2012, to issue a
"massage practitioner" certificate to an individual who
provides sufficient documentation demonstrating he/she
meets specified requirements.
19.Authorizes the MTO, on or before January 1, 2012, to
issue a "conditional certificate" to a massage
practitioner who has completed at least a 100-hour
course in massage, but who has not completed the
required number of practice hours specified; however,
the applicant must complete at least 30 hours of
additional education per year within five years from
approved or registered schools until he/she has
completed a total of 250 hours of education, as
specified.
20.Provides that it is an unfair business practice for any
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certified massage therapist or certified massage
practitioner to state or advertise or put out any sign
or card or other device, or to represent to the public
through any print or electronic media, that he/she is
state-certified, registered, or licensed by a
governmental agency to perform the functions of a
massage therapist or massage practitioner.
21.Provides that it is an unfair business practice for any
person to hold himself/herself out or use the title of
"certified massage therapist" or "certified massage
practitioner" or any other term, such as "licensed,"
"registered," or "CMT," that implies or suggests that
the person is certified as a massage therapist or
practitioner without meeting the requirements for
certification.
22.Provides that the superior court in and for the county
in which any person acts as a massage practitioner or
massage therapist in violation of any of the provisions
of this bill may upon petition from any person issue an
injunction or appropriate order restraining such
conduct.
23.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.
24.Provides that local government shall not enact an
ordinance that requires a license, permit or other
authorization to practice massage by an individual who
is certified under this bill and no provision of any
ordinance enacted by local government that is in effect
before the effective date of this bill, and that
requires a license, permit, or other authorization to
practice massage, may be enforced against an individual
who is certified pursuant to this bill.
25.Provides that nothing in this bill shall be interpreted
to prevent local government from adopting or enforcing
any local ordinance governing zoning, business
licensing, and reasonable health and safety requirements
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for massage establishments or businesses.
26.Provides that building code or physical facility
requirements applicable to massage establishments or
businesses shall not require additional restroom,
shower, or other facilities that are not uniformly
applicable to other professional or personal service
businesses, or other requirements, as specified.
27.Provides that local government may adopt reasonable
health and safety requirements with respect to massage
establishments or businesses as specified, but may not
impose additional qualifications, such as medical
examinations, background checks, or other criteria upon
any person certified by the MTO.
28.Provides that nothing in this bill shall restrict a
local government from regulating an individual not
certified by the MTO.
29.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.
30.Subjects the MTO to the "sunset review process"
conducted by the Joint Committee on Boards, Commissions,
and Consumer Protection (Joint Committee).
31.Sunsets these provisions on January 1, 2016.
Background
Massage has grown into the third most requested
Complementary and Alternative Practice. Only chiropractic
and relaxation techniques are more popular, according to
the bill's sponsors, the American Massage Therapy
Association, California Chapter (AMTA-CA). Massage is used
for managing stress, enhancing self-awareness, maintaining
health, increasing athletic performance, rehabilitating
from injuries, and as an adjunct to medical treatment for a
wide variety of conditions.
Estimates based on surveys, professional affiliations, and
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liability insurance show that up to 25,000 massage
therapists are currently practicing in California. Exact
numbers are hard to pinpoint given the high turnover rate
of the profession. Some massage therapists are independent
practitioners while a large number of others are employees
of spas and chiropractors.
According to the AMTA-CA, 220 schools in California are now
approved to offer instruction in massage, with programs
ranging from 100 hours to 1,000 hours. In addition to the
large number of proprietary schools approved by the BPPVE
or nationally accredited, massage as a vocation is now
taught in cosmetology schools, trade schools, and several
community colleges.
Titles used in California by the massage profession include
massage therapist, massage practitioner, certified massage
therapist, massage technician, bodyworker, masseur,
masseuse, myotherapist, and Nationally Certified in
Therapeutic Massage and Bodywork. Where no local
regulations exist, any title can be used.
The National Certification Board for Therapeutic Massage
and Bodywork (NCBTMB) certifies massage therapists and
bodyworkers on behalf of the profession. NCBTMB developed
and administers the National Certification Examination for
Therapeutic Massage and Bodywork. There is also a
nationally recognized certification exam for practitioners
for certification in Asian bodywork therapies. This is
administered by the National Certification Commission for
Acupuncture and Oriental Medicine.
According to the AMTA-CA, consumers do not know the
difference between a purchased certification and a
certification that requires a specific amount of training.
Different jurisdictions have different standards which
would indicate that there is no local government agreement
about what standards are necessary and sufficient.
FISCAL EFFECT : Appropriation: No Fiscal Com.: Yes
Local: No
SUPPORT : (Verified 7/3/08) (Unable to reverify)
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American Massage Therapist Association, California Chapter
(source)
Associated Bodywork & Massage Professionals
California Chiropractic Association
California Peace Officers Association
City of Campbell
OPPOSITION : (Verified 7/3/08) (Unable to reverify)
California Physical Therapy Association
City of Vista
McKinnon Institute of Massage
ARGUMENTS IN SUPPORT : According to the author's office,
cities and counties currently set up their own requirements
for the field of massage and use similar practices as any
small business. There is no statewide regulation of the
massage therapy field, therefore any person engaging in the
profession of massage in several different cities may be
subject to several different types of regulation. Also, as
indicated by the author's office, since there is no
statewide certification of the massage therapy field,
consumers are left with virtually no recourse if they are
harmed in the process of receiving a massage. There are no
statewide uniform requirements for massage businesses and
no statewide checks for an individual's criminal history
which may adversely affect a consumer's decision to choose
a massage therapist. As argued by the author's office, the
current patchwork regulatory scheme throughout the state
does not protect the consumer. Additionally, it does not
protect the "professional" massage therapist who does not
wish to be subject to individuals who view the massage
industry as an entrance into the sex trade.
ARGUMENTS IN OPPOSITION : The California Physical Therapy
Association (CPTA) opposes this bill, in its present form,
for the following reasons:
"The regulatory scheme proposed by the bill is
unnecessary and inconsistent. CPTA does not disagree
with the need for a bill that is trying to move away from
inconsistent local regulations aimed at massage
businesses. However, SB 731 goes further than that by
assuming that all persons performing massage services are
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providing health care services. This does not account
for all of those persons providing what are clearly
recreational services at day spas throughout the state.
Additionally, if all massage service providers are indeed
health care providers, then the scheme in this bill would
make them the only health care providers in the State
regulated by a nonprofit entity and not a State-run
licensing board.
"This bill adds confusion for the general public. The
bill would create three different types of massage
service providers, with no clear distinction as to a
difference in function or quality level of services
provided. The first would be a 'massage practitioner,'
reserved for those who have 250 hours of curricula. The
second is the category of 'massage therapist' for those
with 500 hours. The third would [be] the category of
providers who choose not to submit an application to this
newly recognized body. There would be no essential
difference in the types of services that any of these
could perform."
ASSEMBLY FLOOR :
AYES: Adams, Aghazarian, Arambula, Beall, Benoit, Berg,
Berryhill, Brownley, Caballero, Charles Calderon, Carter,
Cook, Coto, De Leon, DeSaulnier, Dymally, Eng, Evans,
Feuer, Fuentes, Fuller, Furutani, Galgiani, Garcia,
Garrick, Hancock, Hayashi, Hernandez, Horton, Houston,
Huff, Huffman, Jeffries, Jones, Karnette, Keene, La
Malfa, Laird, Leno, Levine, Lieber, Mendoza, Mullin,
Nakanishi, Nava, Niello, Nunez, Parra, Plescia,
Portantino, Price, Ruskin, Salas, Saldana, Silva, Smyth,
Solorio, Strickland, Swanson, Torrico, Tran, Villines,
Wolk, Bass
NOES: Anderson, De La Torre, Emmerson, Gaines, Ma, Maze,
Spitzer
NO VOTE RECORDED: Blakeslee, Davis, DeVore, Duvall,
Krekorian, Lieu, Sharon Runner, Soto, Walters
JJA:mw 8/16/08 Senate Floor Analyses
SUPPORT/OPPOSITION: SEE ABOVE
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