BILL ANALYSIS Ó SB 1238 Page 1 SENATE THIRD READING SB 1238 (Price) As Amended August 20, 2012 Majority vote SENATE VOTE :38-0 BUSINESS & PROFESSIONS 9-0 APPROPRIATIONS 17-0 ----------------------------------------------------------------- |Ayes:|Hayashi, Bill Berryhill, |Ayes:|Gatto, Harkey, | | |Allen, Butler, Eng, | |Blumenfield, Bradford, | | |Hagman, Hill, Ma, Smyth | |Charles Calderon, Campos, | | | | |Davis, Donnelly, Fuentes, | | | | |Hall, Hill, Cedillo, | | | | |Mitchell, Nielsen, Norby, | | | | |Solorio, Wagner | | | | | | ----------------------------------------------------------------- SUMMARY : Makes a number of changes to law pertaining to the California Massage Therapy Council (CAMTC). Specifically, this bill : 1)Defines an operator of a massage business to mean a person, whether owner or nonowner, who manages or operates a massage business. 2)Allows the use of credit unit equivalents (in addition to hours) in determining completion of required education for massage practitioners and massage therapists. 3)Revises the dual path to licensure for massage therapists by adding the following educational requirements to the option that currently requires only the passage of a competency assessment examination: successful completion, at a single approved school, of curricula in massage and related subjects totaling a minimum of 250 hours that incorporates appropriate school assessment of student knowledge and skills. Included in the hours shall be instruction addressing anatomy and physiology, contraindications, health and hygiene, and business and ethics, with at least 100 hours of the required minimum 250 hours devoted to these curriculum areas. SB 1238 Page 2 4)Requires certificates and identification cards issued by the CAMTC to be surrendered to CAMTC by any holder whose certificate has been suspended or revoked. 5)Allows the CAMTC to immediately suspend the certificate of a certificate holder upon receipt of clear and convincing evidence that the holder has committed an act punishable as a sexually related crime or felony, and requires the CAMTC to consider any available credible mitigating evidence before making a decision to suspend a certificate, as specified. 6)Provides the holder of a suspended certificate the right to a hearing within 30 days, and requires the CAMTC to send notice of suspension to the certificate holder, businesses on record with the CAMTC as employing or contracting with the holder, and the local permitting authority with jurisdiction over the employing or contracting businesses, as specified. 7)Authorizes a law enforcement agency or local government agency with responsibility for regulating massage or massage business, upon request of the CAMTC, to provide information to the CAMTC concerning an applicant or certificate holder, including, but not limited to: the current status of any application or local permit; any history of disciplinary action taken against the applicant or certificate holder; any information related to criminal activity or unprofessional conduct allegedly engaged in by an applicant or certificate holder, including, but not limited to, police reports and declarations of conduct; the home and work addresses of the applicant or certificate holder; and, any other information in the law enforcement agency's or other local government agency's possession that is necessary to verify facts or implement laws governing massage therapists. 8)Authorizes the CAMTC to deny an application or discipline a certificate holder for a conviction of any infraction, municipal code violation, or liability in an administrative or civil action that is substantially related to the qualifications, functions, or duties of a certificate holder, in which event the record of the conviction or other judgment shall be conclusive evidence of the crime or liability. 9)Requires a certificate holder to display his or her original certificate at his or her place of business. SB 1238 Page 3 10)Requires a certificate holder to have his or her identification card in his or her possession while providing massage services. 11)Requires a certificate holder, upon request at the location where he or she is providing massage services, to provide his or her full name and certificate number to a member of the public, the CAMTC, or a member of law enforcement or a local government agency charged with regulating massage. 12)Specifies that business license fees charged to a massage business or establishment can be no higher than the lowest fee that is applied to other individuals and businesses providing professional services, as specified. 13)Makes a certified massage business owner responsible for the conduct of all employees or independent contractors working on the premises of the business. 14)Specifies that local jurisdictions can only ask for information from applicants for a massage business license that is the same as that required of other individuals and professionals providing professional services, as specified. 15)Specifies that the background check that a local jurisdiction can require of an owner or operator of a massage establishment may include, but is not limited to, a criminal background check, including requiring submission of fingerprints. If a noncertified owner's or operator's background check results in a finding that the local jurisdiction determines is relevant to owning or operating a massage establishment, then specified rights to practice shall not apply to that establishment and the local jurisdiction may regulate that establishment in any manner it deems proper that is in accordance with the law. 16)Specifies that nothing in statutes governing massage therapy shall be construed to restrict or limit in any way the authority of a local jurisdiction to adopt a local ordinance restricting the opening of a new massage establishment in a location in which a massage establishment has been closed due to criminal activity. SB 1238 Page 4 FISCAL EFFECT : According to the Assembly Appropriations Committee, potential minor, absorbable increased enforcement costs to CAMTC. COMMENTS : The author provided the following rationale for the bill's changes to statutes governing the CAMTC, This bill defines "operator" as someone who owns or manages a business. Under current law, cities and counties can conduct background checks of non-certified owners of massage businesses. Due to the fact that often the owner is not on site or involved in operations, city attorneys have requested the right to investigate a person who has substantial authority over the operation of the establishment, such as hiring and firing of certified massage professionals. This bill allows education to be "250 hours or the credit unit equivalent" and "500 hours or the credit unit equivalent." The United States Department of Education has issued new rules for recognizing school credits issued. Currently, CAMTC converts credits to hours but some states have recognized in rules that they will accept both. California schools have suggested that CAMTC do the same to avoid confusion regarding student financial aid. This bill adds a requirement that a person be qualified as a massage practitioner in addition to passing an approved exam. Current law has a loophole though which a person without any massage training can qualify for certification by passing an exam that requires no proof of education. In California, it has been discovered that people were taking test review preparation courses on the Internet without any supervised massage education. To prevent this, CAMTC currently does not recognize the Massage and Bodywork Licensing Examination (MEBLEx), which was developed by the Federation of State Massage Therapy Boards and is currently used by 36 states, the District of Columbia, Puerto Rico and the Virgin Islands for state licensing purposes and does not set a requirement for education because each state (except for California) sets their own standard in order to sit for the exam. This provision will allow an applicant who has at least 250 hours of approved education to qualify at the higher tier by passing an exam, and would allow CAMTC to recognize the MEBLEx. This bill specifies that the certificate and ID card are the SB 1238 Page 5 property of CAMTC and shall be surrendered upon suspension or revocation. This is standard practice for suspended or revoked certifications and licenses This bill adds to grounds for immediate suspension of certification acts of unprofessional conduct based on clear and convincing evidence of a sexually related crime or felony based on sworn declarations, which was requested by law enforcement and the enforcement division of CAMTC. This bill allows law enforcement or a local government agency to provide information to CAMTC regarding a certificate holder or applicant, including the status of a local permit, disciplinary actions, criminal activity or unprofessional conduct, police reports and declarations of conduct. A small number of city attorneys, including from Los Angeles, do not believe that local governments have the authority to provide information to CAMTC, resulting in approval of applicants who would otherwise be denied. All applicants sign an authorization for release of such information to CAMTC. This bill adds to the grounds for denial or discipline an infraction, municipal code violation or liability in an administrative or civil action that is substantially related to the practice of massage. It is common to charge relevant crimes such as solicitation as infractions, civil citations or municipal code violations. Administrative and civil citations are alternatives to criminal proceedings against a person or business for violation of the city's laws. Government Code specifically authorizes cities to make violations of ordinances subject to a civil fine or penalty instead of the usual criminal fine. These citations are subject to appeal and ultimately can be challenged in court. Currently, defense attorneys are advising clients to plea to infractions to avoid denial or discipline by CAMTC. This bill requires that the ID card be in the possession of the therapist while providing massage and that he or she display only an original certificate. This is a city request. The certificate itself does not have a photo. Other professions require only original certificates or licenses be displayed. This bill requires certified professionals to provide their full name and certification number to the public, CAMTC or law SB 1238 Page 6 enforcement upon request. The public has a right to know who their massage therapist is and whether they are certified. This bill specifies that the business license fees can be no higher than the lowest fee charged other professionals. This is a city request. Currently, most cities have multiple rates for professionals. In some cases this will result in lower fees. This bill clarifies that an application for a business license for businesses in which everyone provided is certified shall be the same as that required of other individuals and professionals providing professional services. This is a city request for clarification. This bill makes the certified owner responsible for the conduct of all employees or independent contractors working on the premises of the business. The current language has a loophole whereby if anyone providing massage is not certified, the owner cannot be held responsible for the conduct of those providing massage on the premises. This bill allows the owner/operator background check to be 10 years and include live scan and criminal background check. If the owner background check results in findings of history relevant to owning or management of a massage business, certain provisions do not apply. Several city attorneys interpret current language as prohibiting checking 10 years work and home address history (as CAMTC does on the applicant for certification) or including a criminal background check and live scan. The law does not currently allow a city or county to prevent a person from opening or operating a massage business as there are no consequences should the background investigation reveal offenses substantially related to the operation of a massage business. This bill states that local jurisdictions have the authority to restrict the ability of a new massage business to open in any location in which a massage business has been closed for criminal activity. This is a city request. It is common for illicit businesses to change ownership and continue the same type of business. Nuisance abatement, which prohibits any use of the site for one year, is costly and burdensome on the city and county. The revolving door of illicit businesses is a huge problem for cities and counties. SB 1238 Page 7 SB 731 (Oropeza), Chapter 384, Statutes of 2008, created voluntary statewide certification of massage therapists by the Massage Therapy Organization (MTO). The purpose of the MTO was to make the process of certification the same throughout the state, rather than different in each city and county. The certification allows for work in multiple California locations without the need for multiple permits or fees. The MTO was renamed the CAMTC by the organization. CAMTC evaluates the qualifications of massage professionals and issues certifications in California. There are two levels of certification, massage therapist and massage practitioner, each with different educational requirements. If a certificate holder violates terms of certification, CAMTC can suspend or revoke their certification. Although California law grants title protection, there is no defined scope of practice for massage professionals. Scope of practice questions therefore fall under what insurance providers will cover in the event of a claim and what falls outside the exclusive scope of practice of licensed health care professions. Local cities and counties cannot require local massage permits of CAMTC certificate holders, but they can require permits dealing with reasonable health and safety issues. They will also generally require a business license of the business owner, independent contractor, or tenant. Analysis Prepared by : Elissa Silva / B.,P. & C.P. / (916) 319-3301 FN: 0005035