BILL ANALYSIS Ó AB 2194 Page 1 CONCURRENCE IN SENATE AMENDMENTS AB 2194 (Salas) As Amended August 19, 2016 Majority vote -------------------------------------------------------------------- |ASSEMBLY: |79-0 |(May 5, 2016) |SENATE: | 39-0 |(August 25, | | | | | | |2016) | | | | | | | | | | | | | | | -------------------------------------------------------------------- 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 AB 2194 Page 2 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. AB 2194 Page 3 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 AB 2194 Page 4 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 AB 2194 Page 5 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 AB 2194 Page 6 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 AB 2194 Page 7 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 AB 2194 Page 8 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