BILL ANALYSIS Ó
AB 2194
Page 1
CONCURRENCE IN SENATE AMENDMENTS
AB
2194 (Salas)
As Amended August 19, 2016
Majority vote
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|ASSEMBLY: |79-0 |(May 5, 2016) |SENATE: | 39-0 |(August 25, |
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Original Committee Reference: B. & P.
SUMMARY: Extends the sunset date for the California Massage
Therapy Counsel (CAMTC) by four years; clarifies the enforcement
authority of the CAMTC, as specified; prohibits a city or county
from requiring a massage establishment to have a shower or bath;
codifies intent language requiring local governments to impose
only reasonable and necessary fees, and makes other technical
and clarifying changes.
The Senate amendments:
1)Extend the sunset date of the CAMTC by four years, instead of
two, until 2021.
2)Extend the requirement for a report that is to be provided to
the Legislature which includes a feasibility study, as
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specified, information regarding the operation of the CAMTC,
and the disciplinary action taken by CAMTC against both
applicants and certificate holders, to January 1, 2017.
3)Clarify that a city, county, or city and county shall not
require of a person who is certified pursuant to the Act, to
have to submit to another background check, including, a
criminal background check, or require submission of
fingerprints for a federal or state criminal background check.
4)Prohibit a city, county, or city and country from requiring a
massage establishment to have a shower or bath.
5)Codify existing intent language requiring the fees imposed on
massage businesses and establishments by local governments be
reasonable and necessary.
6)Provide that a procedure meets the requirements for fair
procedure if specified procedures are followed, and authorizes
a final decision to deny or impose discipline to be based
solely on a written statement or declaration made under
penalty of perjury, as specified.
7)Allow an applicant to challenge a denial or discipline
decision within 90 days instead of one year, as specified.
8)Make other technical and clarifying changes.
9)Add intent language for local governments to give strong
consideration to establishing a registration program that
grants local governments the ability to either suspend or
revoke a registration of massage businesses for specific
violations.
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FISCAL EFFECT: According to the Senate Appropriations
Committee,
1)There is no fiscal impact to the state from the extension of
the operation of the California Massage Therapy Council. The
Council is a state-authorized non-profit organization and is
not part of state government. The state does not provide any
funding to the Council, which is funded by fees assessed on
applicants for certification.
2)Ongoing costs of about $300,000 per year for the Department of
Justice to process background checks for applicants applying
for certification by the Council (Fingerprint Fees Account).
The number of new applicants for certification over the last
several years has varied considerably. On average, the
Council has received about 10,000 applications per year.
Currently, the Department of Justice assesses a $32 fee to
cover its costs to process a background check. (Applicants are
also required to pay a fee to the Federal Bureau of
Investigation (FBI) and to the entity that collects the
applicant's fingerprint.)
COMMENTS:
Purpose. Unless legislation is carried this year to extend the
sunset date for the CAMTC, it will be repealed on January 1,
2017. The legislative changes reflected in this bill are
solutions to issues raised about the CAMTC in the Business and
Professions Committee staff Background Paper and during its
subsequent sunset review hearing.
CAMTC. The CAMTC is a nonprofit organization responsible for
the voluntary certification and recertification of massage
therapists and the recertification of massage practitioners.
The certification law was initially enacted by SB 731(Oropeza),
Chapter 384, Statutes of 2008. Because certification is
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voluntary, non-certified individuals may provide massage
services in accordance with local rules and regulations. SB 731
authorized the creation of a governing certification entity, the
Massage Therapy Organization which was renamed the CAMTC by AB
619 (Halderman) Chapter 162, Statutes of 2011.
Unlike other practice acts in the Business and Professions Code
(BPC), the Massage Therapy Act is administered by a private
nonprofit organization, not an agency under the Department of
Consumer Affairs (DCA). The provision authorizing the
establishment of the nonprofit oversight body for the purpose of
administering the voluntary massage certification program is
specified in BPC Section 4602. As a nonprofit public benefit
organization, the CAMTC must abide by nonprofit corporations
law, as specified in the Corporations Code. The CAMTC is
authorized by statute to take any reasonable actions necessary
to carry out its responsibilities and duties, as specified in
BPC Section 4600 et seq.
CAMTC-certified professionals are recognized throughout
California to provide massage services but may still be subject
to local ordinances and business regulations. Government Code
(GC) Section 51034 provides modest restrictions on local
ordinances regarding certified massage professionals and massage
businesses. For individuals who are not certified by the CAMTC,
local jurisdictions may regulate those individuals according to
their local ordinances.
The law also authorizes the CAMTC to deny applications and
discipline certificate holders by denying an applicant or
revoking, suspending, or placing probationary conditions on an
individual's certificate.
The CAMTC's Board of Directors (board) is currently comprised of
13 members who are appointed by various entities including, but
not limited to, massage trade associations, the League of
California Cities, the DCA, the California Police Chiefs
Association, the California State Association of Counties, the
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Chancellor of the California Community Colleges, the California
Association of Private Postsecondary Schools, an anti-human
trafficking organization, and the CAMTC itself.
Joint Oversight Hearings and Sunset Review of DCA Licensing
Boards. In March of 2016, the Senate Business, Professions and
Economic Development Committee and the Assembly Business and
Professions Committee (Committees) conducted multiple joint
oversight hearings to review 11 regulatory boards within the
DCA, and one regulatory entity outside of the DCA. The sunset
bills are intended to implement legislative changes recommended
in the respective background reports drafted by the Committees
for the agencies reviewed this year.
In 2014, the CAMTC underwent its first sunset review which
highlighted numerous issues about the operations of the
organization and the impact of the massage therapy law -
particularly its land use preemption provisions - on local
governments. As a result, AB 1147 (Bonilla) Chapter 406,
Statutes of 2014, made numerous changes to the Massage Therapy
Act. Although AB 1147 was signed into law in 2014, the
provisions of that bill did not take effect until January 1,
2015. Some of the major changes required by AB 1147 included:
1) the establishment of a fee cap for certification and
recertification fees; 2) sunset the CMP certification tier; 3)
expansion of the definition of unprofessional conduct; 4)
requirement of the CAMTC to develop policies, procedures, rules
or bylaws for the approval of schools; 5) reconstitution of the
CAMTC board; 6) return of local control; and established a
number of new protections for certified professionals.
The two-year extension provisions enacted after the CAMTC's last
sunset review was intended to provide the Legislature with an
opportunity to review the CAMTC's implementation of the numerous
changes that resulted from AB 1147. Moreover, the two-year
sunset extension ensured that the Legislature would be able to
examine the performance of the new provisions of GC Section
51304 and the deletion of preemption which shifted the
regulation of massage businesses back to the local regulatory
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entities during the transition to make any potentially needed
follow-up changes.
Unlike other practice acts in the BPC, the Act is administered
by a private nonprofit organization, not an agency under the
DCA. The provision authorizing the establishment of the
nonprofit oversight body for the purpose of administering the
voluntary massage certification program is specified in the Act.
As a nonprofit public benefit organization, the CAMTC must
abide by nonprofit corporations law, as specified in the
Corporations Code. The CAMTC is authorized by statute to take
any reasonable actions necessary to carry out its
responsibilities and duties, as specified in the Act.
CAMTC-certified professionals are recognized throughout
California to provide massage services but may still be subject
to local ordinances and business regulations. GC Section 51034
provides modest restrictions on local ordinances regarding
certified massage professionals and massage businesses. For
individuals who are not certified by the CAMTC, local
jurisdictions may regulate those individuals according to their
local ordinances. This bill codifies existing intent language
to require local governments to impose and enforce only
reasonable and necessary fees and regulations on massage
establishments, as specified. In addition, this bill adds
intent language to encourage local governments to establish a
registration program that grants local governments the ability
to either suspend or revoke a massage business establishment
registration.
The law also authorizes the CAMTC to deny applications and
discipline certificate holders by denying an applicant or
revoking, suspending, or placing probationary conditions on an
individual's certificate. This bill adds onto the CAMTC's
existing enforcement authority clarifying that a procedure meets
the requirements for fair procedure if specified procedures are
followed, and authorizes a final decision to deny or impose
discipline to be based solely on a written statement or
declaration made under penalty of perjury, as specified. In
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addition, this bill requires an applicant or certificate holder
to challenge a denial or disciplinary decision within 90 days
instead of one year, as specified.
The CAMTC identified several issues in need of technical
clarification in its 2015 Sunset Review Report, including the
three referenced below:
BPC Section 4601(a) defines an "approved school" or an "approved
massage school" as a school that is approved by the council that
meets minimum standards for training and curriculum in massage
and related subjects, and that is additionally approved by a
specified list of accrediting bodies. As a result of AB 1147,
BPC Section 4604(a)(2)(B) specifies that in order to obtain
certification, all 500 hours of education must be from schools
"approved by the council." As noted in the CAMTC's 2015 Sunset
Review Report, because the CAMTC is not the only entity
responsible for school-approval, it requests to replace "schools
approved by the council" with an "approved school" for
consistency with the definition of an "approved school" as
defined in BPC Section 4601(a).
Prior to AB 1147, there was a provision in the Massage Therapy
Act which required the CAMTC to notify the employers of
certificate holders that were suspended based on an arrest with
charges filed for Penal Code 647(b) (prostitution), or an act
punishable as a sexually-related crime, at the last address
filed with the CAMTC. BPC Section 4610(f)(1)(C) changed this
provision to limit the notification of employers to an
email-only notification. As reported by the CAMTC, often times
applicants fail to provide the CAMTC with an email address for
the vast majority of businesses (even though one is requested),
and an email message may easily be ignored. The CAMTC requests
to revise current law to allow for the specified notification to
employers to be completed via email or first-class mail.
BPC Section 4610(e)(4) specifies that when the CAMTC is
proposing to deny an application or impose discipline on a
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certificate holder, the disciplinary procedure is fair and
reasonable if specified conditions are followed, including "an
opportunity for the applicant or certificate holder, to be
heard, orally or in writing." However, BPC Section 4610(g)(2),
a provision allowing for suspension based on evidence, does not
specify that a certificate holder has the opportunity to be
heard "orally or in writing." The CAMTC reported that although
the CAMTC interprets this provision to provide for an oral
hearing or consideration of a written statement, clarification
of this provision might better inform certificate holders of
their options in appealing a disciplinary matter.
Analysis Prepared by:
Elissa Silva / B. & P. / (916) 319-3301 FN:
0004945