Amended in Assembly April 19, 2016

Amended in Assembly April 5, 2016

California Legislature—2015–16 Regular Session

Assembly BillNo. 2194


Introduced by Assembly Member Salas

(Principal coauthor: Senator Hill)

February 18, 2016


An act to amend Sectionsbegin delete 4602end deletebegin insert 4602, 4604, 4610,end insert and 4621 of the Business and Professions Code, relating to massage therapy.

LEGISLATIVE COUNSEL’S DIGEST

AB 2194, as amended, Salas. California Massage Therapy Council: extension of sunset date.

The Massage Therapy Act, until January 1, 2017, provides for certification of massage practitioners and massage therapists by the California Massage Therapy Council. Existing law also provides for the council to be governed by an interim board of directors until September 15, 2015, and for the appointment of a new board of directors having 4-year terms.begin insert That act requires the council to immediately suspend, on an interim basis, the certificate of a certificate holder if the council receives notice that a certificate holder has been arrested and charges have been filed alleging a violation of certain provisions of law and requires the council to notify an establishment or employer of the suspension by email within 10 business days. That act authorizes the council, if it determines that a certificate holder has committed an act punishable as a sexually related crime, to immediately suspend the certificate of that certificate holder, and provides that the certificate holder has the right to request a hearing to challenge the suspension.end insert

This bill would extend the operation of these provisions until January 1, 2019, and make nonsubstantive changes to delete obsolete provisions related to the interim board.begin insert The bill would additionally authorize the council to notify an establishment or employer of the suspension of a certificate by first-class mail, and would authorize a certificate holder whose certificate is suspended to request an oral hearing or consideration of a written statement to challenge the suspension.end insert

Vote: majority. Appropriation: no. Fiscal committee: yes. State-mandated local program: no.

The people of the State of California do enact as follows:

P2    1

SECTION 1.  

Section 4602 of the Business and Professions
2Code
is amended to read:

3

4602.  

(a) The California Massage Therapy Council, as defined
4in subdivision (d) of Section 4601, is hereby established and shall
5carry out the responsibilities and duties set forth in this chapter.

6(b) The council may take any reasonable actions necessary to
7carry out the responsibilities and duties set forth in this chapter,
8including, but not limited to, hiring staff, entering into contracts,
9and developing policies, procedures, rules, and bylaws to
10implement this chapter.

11(c) The council may require background checks for all
12employees, contractors, volunteers, and board members as a
13condition of their employment, formation of a contractual
14relationship, or participation in council activities.

15(d) The council shall issue a certificate to an individual applicant
16who satisfies the requirements of this chapter for that certificate.

17(e) The council is authorized to determine whether the
18information provided to the council in relation to the certification
19of an applicant is true and correct and meets the requirements of
20this chapter. If the council has any reason to question whether the
21information provided is true or correct, or meets the requirements
22of this chapter, the council is authorized to make any investigation
23it deems necessary to establish that the information received is
24accurate and satisfies any criteria established by this chapter. The
25applicant has the burden to prove that he or she is entitled to
26certification.

P3    1(f) The council shall be governed by a board of directors
2comprised of 13 members who shall be chosen in the following
3manner:

4(1) One member shall be a representative of the League of
5California Cities, unless that entity chooses not to exercise this
6right to appoint.

7(2) One member shall be a representative of the California Police
8Chiefs Association, unless that entity chooses not to exercise this
9right to appoint.

10(3) One member shall be a representative of the California State
11Association of Counties, unless that entity chooses not to exercise
12this right to appoint.

13(4) One member shall be a representative of an “anti-human
14trafficking” organization to be determined by the council. This
15organization shall appoint one member, unless the organization
16chooses not to exercise this right to appoint.

17(5) One member shall be appointed by the Office of the
18Chancellor of the California Community Colleges, unless that
19office chooses not to exercise this right to appoint.

20(6) One member shall be a member of the public appointed by
21the Director of the Department of Consumer Affairs, unless the
22director chooses not to exercise this right to appoint.

23(7) One member shall be appointed by the California Association
24of Private Postsecondary Schools, unless that entity chooses not
25to exercise this right to appoint.

26(8) One member shall be appointed by the American Massage
27Therapy Association, California Chapter, who shall be a
28California-certified massage therapist or massage practitioner who
29is a California resident and who has been practicing massage for
30at least three years, unless that entity chooses not to exercise this
31right to appoint.

32(9) One member shall be a public health official representing a
33city, county, city and county, or state health department, to be
34determined by the council. The city, county, city and county, or
35state health department chosen, shall appoint one member unless
36that entity chooses not to exercise this right to appoint.

37(10) (A) One member shall be a certified massage therapist or
38a certified massage practitioner who is a California resident who
39has practiced massage for at least three years prior to the
40appointment, selected by a professional society, association, or
P4    1other entity which membership is comprised of massage therapist
2professionals, and that chooses to participate in the council. To
3qualify, a professional society, association, or other entity shall
4have a dues-paying membership in California of at least 1,000
5individuals, have been established since 2000, and shall have
6bylaws that require its members to comply with a code of ethics.

7(B) If there is more than one professional society, association,
8or other entity that meets the requirements of subparagraph (A),
9the appointment shall rotate based on a four-year term between
10each of the qualifying entities. The qualifying entity shall maintain
11its appointment authority during the entirety of the four-year term
12during which it holds the appointment authority. The order in
13which a qualifying professional society, association, or other entity
14has the authority to appoint shall be determined by alphabetical
15order based on the full legal name of the entity as of January 1,
162014.

17(11) The members appointed to the board in accordance with
18paragraphs (1) to (10), inclusive, shall appoint three additional
19members, at a duly held board meeting in accordance with the
20 board’s bylaws. One of those appointees shall be an attorney
21licensed by the State Bar of California, who has been practicing
22law for at least three years and who at the time of appointment
23represents a city in the state. One of those appointees shall represent
24a massage business entity that has been operating in the state for
25at least three years. The council shall establish in its bylaws a
26process for appointing an additional member, provided that the
27member has knowledge of the massage industry or can bring
28needed expertise to the operation of the council for purposes of
29complying with Section 4603.

30(g) Board member terms shall be for four years.

31(h) The board of directors shall establish fees reasonably related
32to the cost of providing services and carrying out its ongoing
33responsibilities and duties. Initial and renewal fees for certificates
34shall be in an amount sufficient to support the functions of the
35council in the administration of this chapter, but in no event shall
36exceed three hundred dollars ($300). The renewal fee shall be
37reassessed biennially by the board.

38(i) The meetings of the council shall be subject to the rules of
39the Bagley-Keene Open Meeting Act (Article 9 (commencing with
40Section 11120) of Chapter 1 of Part 1 of Division 3 of Title 2 of
P5    1the Government Code). The board may adopt additional policies
2and procedures that provide greater transparency to certificate
3holders and the public than required by the Bagley-Keene Open
4Meeting Act.

5(j) Prior to holding a meeting to vote upon a proposal to increase
6the certification fees, the board shall provide at least 90 days’
7notice of the meeting, including posting a notice on the council’s
8Internet Web site unless at least two-thirds of the board members
9concur that there is an active threat to public safety and that voting
10at a meeting without prior notice is necessary. However, the board
11shall not waive the requirements of subdivision (i).

12(k) If the board approves an increase in the certification fees,
13the council shall update all relevant areas of its Internet Web site
14and notify all certificate holders and affected applicants by email
15within 14 days of the board’s action.

16begin insert

begin insertSEC. 2.end insert  

end insert

begin insertSection 4604 of the end insertbegin insertBusiness and Professions Codeend insertbegin insert is
17amended to read:end insert

18

4604.  

(a) In order to obtain certification as a massage therapist,
19an applicant shall submit a written application and provide the
20council with satisfactory evidence that he or she meets all of the
21following requirements:

22(1) The applicant is 18 years of age or older.

23(2) The applicant has successfully completed the curricula in
24massage and related subjects totaling a minimum of 500 hours, or
25the credit unit equivalent, that incorporates appropriate school
26assessment of student knowledge and skills.

27(A) Of the 500 hours, a minimum of 100 hours of instruction
28shall address anatomy and physiology, contraindications, health
29and hygiene, and business and ethics.

30(B) All of the 500 hours shall be frombegin delete schools approved by the
31council.end delete
begin insert approved schools.end insert

32(3) The applicant has passed a massage and bodywork
33competency assessment examination that meets generally
34recognized psychometric principles and standards and that is
35approved by the council. The successful completion of this
36examination may have been accomplished before the date the
37council is authorized by this chapter to begin issuing certificates.

38(4) The applicant has successfully passed a background
39investigation pursuant to Section 4606, and has not violated any
40of the provisions of this chapter.

P6    1(5) All fees required by the council have been paid.

2(6) The council may issue a certificate to an applicant who meets
3the qualifications of this chapter if he or she holds a current and
4valid registration, certification, or license from any other state
5whose licensure requirements meet or exceed those defined within
6this chapter. If an applicant has received education at a school that
7is not approved by the council, the council shall have the discretion
8to give credit for comparable academic work completed by an
9applicant in a program outside of California.

10(b) A certificate issued pursuant to this chapter and any
11identification card issued by the council shall be surrendered to
12the council by any certificate holder whose certificate is suspended
13or revoked.

14begin insert

begin insertSEC. 3.end insert  

end insert

begin insertSection 4610 of the end insertbegin insertBusiness and Professions Codeend insertbegin insert is
15amended to read:end insert

16

4610.  

(a) An applicant for a certificate shall not be denied a
17certificate, and a certificate holder shall not be disciplined pursuant
18to this chapter except according to procedures that satisfy the
19requirements of this section. Denial or discipline that is not in
20accord with this section shall be void and without effect.

21(b) The council may discipline a certificate holder by any, or a
22combination, of the following methods:

23(1) Placing the certificate holder on probation, which may
24include limitations or conditions on practice.

25(2) Suspending the certificate and the rights conferred by this
26chapter on a certificate holder for a period not to exceed one year.

27(3) Suspending or staying the disciplinary order, or portions of
28it, with or without conditions.

29(4) Revoking the certificate.

30(5) Taking other action as the council deems proper, as
31authorized by this chapter or policies, procedures, rules, or bylaws
32adopted by the board.

33(c) The council may issue an initial certificate on probation,
34with specific terms and conditions, to any applicant.

35(d) Any denial or discipline shall be decided upon and imposed
36in good faith and in a fair and reasonable manner. Any procedure
37that conforms to the requirements of subdivision (f) is fair and
38reasonable, but a court may also find other procedures to be fair
39and reasonable when the full circumstances of the denial or
40discipline are considered.

P7    1(e) A procedure is fair and reasonable if the procedures specified
2in subdivision (f) or (g) are followed or if all of the following
3apply:

4(1) Denial or discipline shall be based on a preponderance of
5the evidence. In determining the basis for the denial or discipline,
6the council may consider all written documents or statements as
7evidence, but shall weigh the reliability of those documents or
8statements.

9(2) The provisions of the procedure are publicly available on
10the council’s Internet Web site.

11(3) The council provides 15 calendar days prior notice of the
12denial or discipline and the reasons for the denial or discipline.

13(4) The council provides an opportunity for the applicant or
14certificate holder, to be heard, orally or in writing, not less than
15five days before the effective date of the denial or discipline, by
16a person or body authorized to decide whether the proposed denial
17or discipline should go into effect.

18(f)  (1) Notwithstanding any other law, if the council receives
19notice that a certificate holder has been arrested and charges have
20been filed by the appropriate prosecuting agency against the
21certificate holder alleging a violation of subdivision (b) of Section
22647 of the Penal Code or any other offense described in paragraph
23(11) of subdivision (a) of Section 4609, the council shall
24immediately suspend, on an interim basis, the certificate of that
25certificate holder, and take all of the following additional actions:

26(A) Notify the certificate holder at the address last filed with
27the council that the certificate has been suspended and the reason
28for the suspension within 10 business days.

29(B) Provide notification of the suspension by email to the clerk
30or other designated contact of the city, county, or city and county
31in which the certificate holder lives or works, pursuant to the
32council’s records, within 10 business days.

33(C) Provide notification of the suspension by emailbegin insert or first-class
34mailend insert
to any establishment or employer, whether public or private,
35that the council has in its records as employing the certificate
36holder, within 10 business days.

37(2) Upon notice to the council that the charges described in
38paragraph (1) have resulted in a conviction, the council shall
39permanently revoke the suspended certificate. The council shall
40provide notice to the certificate holder, at the address last filed
P8    1with the council by a method providing delivery confirmation,
2within 10 business days that it has evidence of a valid record of
3conviction and that the certificate will be revoked unless the
4certificate holder provides evidence within 15 days from the date
5of the council’s mailing of the notice that the conviction is either
6invalid or that the information is otherwise erroneous.

7(3) Upon notice that the charges described in paragraph (1) have
8resulted in an acquittal or have been otherwise dismissed prior to
9conviction, the certificate shall be immediately reinstated and the
10certificate holder and any establishment or employer that received
11notice pursuant to this section shall be notified of the reinstatement
12within 10 business days.

13(g)  (1) Notwithstanding any other law, if the council determines
14that a certificate holder has committed an act punishable as a
15sexually related crime or a felony that is substantially related to
16the qualifications, functions, or duties of a certificate holder, the
17council may immediately suspend the certificate of that certificate
18holder. A determination to immediately suspend a certificate
19pursuant to this subdivision shall be based upon a preponderance
20of the evidence and the council shall also consider any available
21credible mitigating evidence before making a decision. Written
22statements by any person shall not be considered by the council
23when determining whether to immediately suspend a certificate
24unless made under penalty of perjury. If the council suspends a
25certificate in accordance with this subdivision, the council shall
26take all of the following additional actions:

27(A) Notify the certificate holder within 10 business days, at the
28address last filed with the council, by a method providing delivery
29confirmation, that the certificate has been suspended, the reason
30for the suspension, and that the certificate holder has the right to
31request a hearing pursuant to paragraph (2).

32(B) Notify by email or any other means consistent with the
33notice requirements of this chapter, any business or employer,
34whether public or private, that the council has in its records as
35employing or contracting with the certificate holder for massage
36services, and the California city, county, or city and county that
37has jurisdiction over that establishment or employer, that the
38certificate has been suspended within 10 business days.

39(2) A certificate holder whose certificate is suspended pursuant
40to this subdivision shall have the right to request, in writing,begin delete aend deletebegin insert an
P9    1oralend insert
hearingbegin insert or consideration of a written statementend insert to challenge
2the factual basis for the suspension. If the holder of the suspended
3certificate requestsbegin delete aend deletebegin insert an oralend insert hearingbegin insert or consideration of a written
4statementend insert
on the suspension, thebegin insert oralend insert hearingbegin insert or consideration of
5a written statementend insert
shall be held within 30 calendar days after
6receipt of the request. A holder whose certificate is suspended
7based on paragraph (1) shall be subject to revocation or other
8discipline in accordance with subdivision (a).

9(3) If the council determines, after a hearing conducted pursuant
10to this subdivision, to lift the suspension, the certificate shall be
11immediately reinstated and the certificate holder, any establishment
12or employer, and the city, county, or city and county that has
13jurisdiction over that establishment or employer, that received
14notice pursuant to this section shall be notified of the reinstatement
15within 10 business days.

16(h) Any notice required under this section may be given by any
17method reasonably calculated to provide actual notice. Any notice
18given by mail shall be given by first-class or certified mail sent to
19the last address of the applicant or certificate holder shown on the
20council’s records.

21(i) An applicant or certificate holder may challenge a denial or
22discipline decision issued pursuant to this section in a court of
23competent jurisdiction. Any action challenging a denial or
24discipline, including any claim alleging defective notice, shall be
25commenced within one year after the effective date of the denial
26or discipline. If the action is successful, the court may order any
27relief, including reinstatement, that it finds equitable under the
28circumstances.

29(j) This section governs only the procedures for denial or
30discipline decision and not the substantive grounds for the denial
31or discipline. Denial or discipline based upon substantive grounds
32that violates contractual or other rights of the applicant or certificate
33holder, or is otherwise unlawful, is not made valid by compliance
34with this section.

35

begin deleteSEC. 2.end delete
36
begin insertSEC. 4.end insert  

Section 4621 of the Business and Professions Code is
37amended to read:

38

4621.  

(a) This chapter shall remain in effect only until January
391, 2019, and as of that date is repealed, unless a later enacted
P10   1statute, that is enacted before January 1, 2019, deletes or extends
2that date.

3(b) Notwithstanding any other law, the powers and duties of the
4council shall be subject to review by the appropriate policy
5committees of the Legislature.



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