BILL ANALYSIS                                                                                                                                                                                                    



                                                                    AB 2194


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          CONCURRENCE IN SENATE AMENDMENTS


          AB  
          2194 (Salas)


          As Amended  August 19, 2016


          Majority vote


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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