BILL NUMBER: AB 2194 AMENDED
BILL TEXT
AMENDED IN ASSEMBLY APRIL 19, 2016
AMENDED IN ASSEMBLY APRIL 5, 2016
INTRODUCED BY Assembly Member Salas
(Principal coauthor: Senator Hill)
FEBRUARY 18, 2016
An act to amend Sections 4602 4602, 4604,
4610, 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. 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.
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. 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 s
uspended to request an oral hearing or consideration of a written
statement to challenge the suspension.
Vote: majority. Appropriation: no. Fiscal committee: yes.
State-mandated local program: no.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Section 4602 of the Business and Professions Code is
amended to read:
4602. (a) The California Massage Therapy Council, as defined in
subdivision (d) of Section 4601, is hereby established and shall
carry out the responsibilities and duties set forth in this chapter.
(b) The council may take any reasonable actions necessary to carry
out the responsibilities and duties set forth in this chapter,
including, but not limited to, hiring staff, entering into contracts,
and developing policies, procedures, rules, and bylaws to implement
this chapter.
(c) The council may require background checks for all employees,
contractors, volunteers, and board members as a condition of their
employment, formation of a contractual relationship, or participation
in council activities.
(d) The council shall issue a certificate to an individual
applicant who satisfies the requirements of this chapter for that
certificate.
(e) The council is authorized to determine whether the information
provided to the council in relation to the certification of an
applicant is true and correct and meets the requirements of this
chapter. If the council has any reason to question whether the
information provided is true or correct, or meets the requirements of
this chapter, the council is authorized to make any investigation it
deems necessary to establish that the information received is
accurate and satisfies any criteria established by this chapter. The
applicant has the burden to prove that he or she is entitled to
certification.
(f) The council shall be governed by a board of directors
comprised of 13 members who shall be chosen in the following manner:
(1) One member shall be a representative of the League of
California Cities, unless that entity chooses not to exercise this
right to appoint.
(2) One member shall be a representative of the California Police
Chiefs Association, unless that entity chooses not to exercise this
right to appoint.
(3) One member shall be a representative of the California State
Association of Counties, unless that entity chooses not to exercise
this right to appoint.
(4) One member shall be a representative of an "anti-human
trafficking" organization to be determined by the council. This
organization shall appoint one member, unless the organization
chooses not to exercise this right to appoint.
(5) One member shall be appointed by the Office of the Chancellor
of the California Community Colleges, unless that office chooses not
to exercise this right to appoint.
(6) One member shall be a member of the public appointed by the
Director of the Department of Consumer Affairs, unless the director
chooses not to exercise this right to appoint.
(7) One member shall be appointed by the California Association of
Private Postsecondary Schools, unless that entity chooses not to
exercise this right to appoint.
(8) One member shall be appointed by the American Massage Therapy
Association, California Chapter, who shall be a California-certified
massage therapist or massage practitioner who is a California
resident and who has been practicing massage for at least three
years, unless that entity chooses not to exercise this right to
appoint.
(9) One member shall be a public health official representing a
city, county, city and county, or state health department, to be
determined by the council. The city, county, city and county, or
state health department chosen, shall appoint one member unless that
entity chooses not to exercise this right to appoint.
(10) (A) One member shall be a certified massage therapist or a
certified massage practitioner who is a California resident who has
practiced massage for at least three years prior to the appointment,
selected by a professional society, association, or other entity
which membership is comprised of massage therapist professionals, and
that chooses to participate in the council. To qualify, a
professional society, association, or other entity shall have a
dues-paying membership in California of at least 1,000 individuals,
have been established since 2000, and shall have bylaws that require
its members to comply with a code of ethics.
(B) If there is more than one professional society, association,
or other entity that meets the requirements of subparagraph (A), the
appointment shall rotate based on a four-year term between each of
the qualifying entities. The qualifying entity shall maintain its
appointment authority during the entirety of the four-year term
during which it holds the appointment authority. The order in which a
qualifying professional society, association, or other entity has
the authority to appoint shall be determined by alphabetical order
based on the full legal name of the entity as of January 1, 2014.
(11) The members appointed to the board in accordance with
paragraphs (1) to (10), inclusive, shall appoint three additional
members, at a duly held board meeting in accordance with the board's
bylaws. One of those appointees shall be an attorney licensed by the
State Bar of California, who has been practicing law for at least
three years and who at the time of appointment represents a city in
the state. One of those appointees shall represent a massage business
entity that has been operating in the state for at least three
years. The council shall establish in its bylaws a process for
appointing an additional member, provided that the member has
knowledge of the massage industry or can bring needed expertise to
the operation of the council for purposes of complying with Section
4603.
(g) Board member terms shall be for four years.
(h) The board of directors shall establish fees reasonably related
to the cost of providing services and carrying out its ongoing
responsibilities and duties. Initial and renewal fees for
certificates shall be in an amount sufficient to support the
functions of the council in the administration of this chapter, but
in no event shall exceed three hundred dollars ($300). The renewal
fee shall be reassessed biennially by the board.
(i) The meetings of the council shall be subject to the rules of
the Bagley-Keene Open Meeting Act (Article 9 (commencing with Section
11120) of Chapter 1 of Part 1 of Division 3 of Title 2 of the
Government Code). The board may adopt additional policies and
procedures that provide greater transparency to certificate holders
and the public than required by the Bagley-Keene Open Meeting Act.
(j) Prior to holding a meeting to vote upon a proposal to increase
the certification fees, the board shall provide at least 90 days'
notice of the meeting, including posting a notice on the council's
Internet Web site unless at least two-thirds of the board members
concur that there is an active threat to public safety and that
voting at a meeting without prior notice is necessary. However, the
board shall not waive the requirements of subdivision (i).
(k) If the board approves an increase in the certification fees,
the council shall update all relevant areas of its Internet Web site
and notify all certificate holders and affected applicants by email
within 14 days of the board's action.
SEC. 2. Section 4604 of the Business
and Professions Code is amended to read:
4604. (a) In order to obtain certification as a massage
therapist, an applicant shall submit a written application and
provide the council with satisfactory evidence that he or she meets
all of the following requirements:
(1) The applicant is 18 years of age or older.
(2) The applicant has successfully completed the curricula in
massage and related subjects totaling a minimum of 500 hours, or the
credit unit equivalent, that incorporates appropriate school
assessment of student knowledge and skills.
(A) Of the 500 hours, a minimum of 100 hours of instruction shall
address anatomy and physiology, contraindications, health and
hygiene, and business and ethics.
(B) All of the 500 hours shall be from schools approved
by the council. approved schools.
(3) The applicant has passed a massage and bodywork competency
assessment examination that meets generally recognized psychometric
principles and standards and that is approved by the council. The
successful completion of this examination may have been accomplished
before the date the council is authorized by this chapter to begin
issuing certificates.
(4) The applicant has successfully passed a background
investigation pursuant to Section 4606, and has not violated any of
the provisions of this chapter.
(5) All fees required by the council have been paid.
(6) The council may issue a certificate to an applicant who meets
the qualifications of this chapter if he or she holds a current and
valid registration, certification, or license from any other state
whose licensure requirements meet or exceed those defined within this
chapter. If an applicant has received education at a school that is
not approved by the council, the council shall have the discretion to
give credit for comparable academic work completed by an applicant
in a program outside of California.
(b) A certificate issued pursuant to this chapter and any
identification card issued by the council shall be surrendered to the
council by any certificate holder whose certificate is suspended or
revoked.
SEC. 3. Section 4610 of the Business
and Professions Code is amended to read:
4610. (a) An applicant for a certificate shall not be denied a
certificate, and a certificate holder shall not be disciplined
pursuant to this chapter except according to procedures that satisfy
the requirements of this section. Denial or discipline that is not in
accord with this section shall be void and without effect.
(b) The council may discipline a certificate holder by any, or a
combination, of the following methods:
(1) Placing the certificate holder on probation, which may include
limitations or conditions on practice.
(2) Suspending the certificate and the rights conferred by this
chapter on a certificate holder for a period not to exceed one year.
(3) Suspending or staying the disciplinary order, or portions of
it, with or without conditions.
(4) Revoking the certificate.
(5) Taking other action as the council deems proper, as authorized
by this chapter or policies, procedures, rules, or bylaws adopted by
the board.
(c) The council may issue an initial certificate on probation,
with specific terms and conditions, to any applicant.
(d) Any denial or discipline shall be decided upon and imposed in
good faith and in a fair and reasonable manner. Any procedure that
conforms to the requirements of subdivision (f) is fair and
reasonable, but a court may also find other procedures to be fair and
reasonable when the full circumstances of the denial or discipline
are considered.
(e) A procedure is fair and reasonable if the procedures specified
in subdivision (f) or (g) are followed or if all of the following
apply:
(1) Denial or discipline shall be based on a preponderance of the
evidence. In determining the basis for the denial or discipline, the
council may consider all written documents or statements as evidence,
but shall weigh the reliability of those documents or statements.
(2) The provisions of the procedure are publicly available on the
council's Internet Web site.
(3) The council provides 15 calendar days prior notice of the
denial or discipline and the reasons for the denial or discipline.
(4) The council provides an opportunity for the applicant or
certificate holder, to be heard, orally or in writing, not less than
five days before the effective date of the denial or discipline, by a
person or body authorized to decide whether the proposed denial or
discipline should go into effect.
(f) (1) Notwithstanding any other law, if the council receives
notice that a certificate holder has been arrested and charges have
been filed by the appropriate prosecuting agency against the
certificate holder alleging a violation of subdivision (b) of Section
647 of the Penal Code or any other offense described in paragraph
(11) of subdivision (a) of Section 4609, the council shall
immediately suspend, on an interim basis, the certificate of that
certificate holder, and take all of the following additional actions:
(A) Notify the certificate holder at the address last filed with
the council that the certificate has been suspended and the reason
for the suspension within 10 business days.
(B) Provide notification of the suspension by email to the clerk
or other designated contact of the city, county, or city and county
in which the certificate holder lives or works, pursuant to the
council's records, within 10 business days.
(C) Provide notification of the suspension by email or
first-class mail to any establishment or employer, whether
public or private, that the council has in its records as employing
the certificate holder, within 10 business days.
(2) Upon notice to the council that the charges described in
paragraph (1) have resulted in a conviction, the council shall
permanently revoke the suspended certificate. The council shall
provide notice to the certificate holder, at the address last filed
with the council by a method providing delivery confirmation, within
10 business days that it has evidence of a valid record of conviction
and that the certificate will be revoked unless the certificate
holder provides evidence within 15 days from the date of the council'
s mailing of the notice that the conviction is either invalid or that
the information is otherwise erroneous.
(3) Upon notice that the charges described in paragraph (1) have
resulted in an acquittal or have been otherwise dismissed prior to
conviction, the certificate shall be immediately reinstated and the
certificate holder and any establishment or employer that received
notice pursuant to this section shall be notified of the
reinstatement within 10 business days.
(g) (1) Notwithstanding any other law, if the council determines
that a certificate holder has committed an act punishable as a
sexually related crime or a felony that is substantially related to
the qualifications, functions, or duties of a certificate holder, the
council may immediately suspend the certificate of that certificate
holder. A determination to immediately suspend a certificate pursuant
to this subdivision shall be based upon a preponderance of the
evidence and the council shall also consider any available credible
mitigating evidence before making a decision. Written statements by
any person shall not be considered by the council when determining
whether to immediately suspend a certificate unless made under
penalty of perjury. If the council suspends a certificate in
accordance with this subdivision, the council shall take all of the
following additional actions:
(A) Notify the certificate holder within 10 business days, at the
address last filed with the council, by a method providing delivery
confirmation, that the certificate has been suspended, the reason for
the suspension, and that the certificate holder has the right to
request a hearing pursuant to paragraph (2).
(B) Notify by email or any other means consistent with the notice
requirements of this chapter, any business or employer, whether
public or private, that the council has in its records as employing
or contracting with the certificate holder for massage services, and
the California city, county, or city and county that has jurisdiction
over that establishment or employer, that the certificate has been
suspended within 10 business days.
(2) A certificate holder whose certificate is suspended pursuant
to this subdivision shall have the right to request, in writing,
a an oral hearing or consideration
of a written statement to challenge the factual basis for the
suspension. If the holder of the suspended certificate requests
a an oral hearing or consideration
of a written statement on the suspension, the oral
hearing or consideration of a written statement shall be
held within 30 calendar days after receipt of the request. A holder
whose certificate is suspended based on paragraph (1) shall be
subject to revocation or other discipline in accordance with
subdivision (a).
(3) If the council determines, after a hearing conducted pursuant
to this subdivision, to lift the suspension, the certificate shall be
immediately reinstated and the certificate holder, any establishment
or employer, and the city, county, or city and county that has
jurisdiction over that establishment or employer, that received
notice pursuant to this section shall be notified of the
reinstatement within 10 business days.
(h) Any notice required under this section may be given by any
method reasonably calculated to provide actual notice. Any notice
given by mail shall be given by first-class or certified mail sent to
the last address of the applicant or certificate holder shown on the
council's records.
(i) An applicant or certificate holder may challenge a denial or
discipline decision issued pursuant to this section in a court of
competent jurisdiction. Any action challenging a denial or
discipline, including any claim alleging defective notice, shall be
commenced within one year after the effective date of the denial or
discipline. If the action is successful, the court may order any
relief, including reinstatement, that it finds equitable under the
circumstances.
(j) This section governs only the procedures for denial or
discipline decision and not the substantive grounds for the denial or
discipline. Denial or discipline based upon substantive grounds that
violates contractual or other rights of the applicant or certificate
holder, or is otherwise unlawful, is not made valid by compliance
with this section.
SEC. 2. SEC. 4. Section 4621 of the
Business and Professions Code is amended to read:
4621. (a) This chapter shall remain in effect only until January
1, 2019, and as of that date is repealed, unless a later enacted
statute, that is enacted before January 1, 2019, deletes or extends
that date.
(b) Notwithstanding any other law, the powers and duties of the
council shall be subject to review by the appropriate policy
committees of the Legislature.