BILL ANALYSIS Ó AB 2793 Page 1 Date of Hearing: April 26, 2016 ASSEMBLY COMMITTEE ON BUSINESS AND PROFESSIONS Rudy Salas, Chair AB 2793 (Jones) - As Amended April 11, 2016 SUBJECT: Local government: business license: massage: bowenwork. SUMMARY: Excludes bowenwork from the business of massage. EXISTING LAW: 1)Authorizes a city, county, or city and county to enact an ordinance which provides for the licensing and regulation of the business of massage when carried on within the city, county, or city and county. (Government Code (GC) Section 51030) 2)States that the ordinance may condition the issuance of a massage business license upon proof that a massage business meets reasonable standards, including, but not limited to, age of massage personnel, education, experience, and passage of a practical examination for massage personnel, sanitary conditions of an establishment, and hours of operation for a massage business. (GC Section 51031) AB 2793 Page 2 3)States that an ordinance may provide for the denial of business license for massage, as specified. (GC Section 51032) 4)Exempts cosmetologists, barbers, and licensed healing arts practitioners from massage ordinance requirements. (GC Section 51033) 5)Prohibits a city, county, or city and county from the following: (GC Section 51034(c)(1-8)) a) Prohibiting a person of one sex from engaging in the massage of a person of the other sex; b) Defining a massage establishment as an adult entertainment business, or otherwise regulate a massage establishment as adult entertainment; c) Requiring a massage establishment to have windows or walls that do not extend from the floor to the ceiling, or have other internal physical structures including windows, that interfere with a client's reasonable expectation of privacy; d) Imposing client draping requirements, as specified; e) Prohibiting a massage establishment from locking its external doors if the massage establishment is a business entity owned by one individual with one or no employees or independent contractors; AB 2793 Page 3 f) Requiring a massage establishment to post a notice in an area viewed by clients that contains explicit language, as specified; g) Requiring a certified individual to take any test, medical examination, or background check, or comply with education requirements beyond what is required under the Massage Therapy Act; and, h) Imposing a requirement that an individual holding a certificate in accordance with the Massage Therapy Act, obtain any other license, permit, certificate or other authorization to provide massage for compensation, as specified; however, a city is not prohibited from requiring an ordinance that a massage business or establishment obtain a license, permit, certificate, or other authorization in order to operate lawfully within the jurisdiction. 6)Defines "massage" to mean the scientific manipulation of the soft tissues. (Business and Professions Code (BPC) Section 4601(e)) THIS BILL: 1)States that the business of massage does not include bowenwork. FISCAL EFFECT: None. This bill is keyed non-fiscal by the Legislative Counsel. COMMENTS: AB 2793 Page 4 Purpose. This bill exempts bowenwork from the business of massage in an effort to alleviate practitioners of bowen therapy from being required to obtain a massage therapy certification in those jurisdictions which require a voluntary certification in order to practice massage therapy. This bill is sponsored by BowenUSA . According to the author, "[This bill] is a bill advocating for small businesses. Trained and certified Bowen practitioners should not be prohibited in their ability to provide for themselves and their families because they don't have a massage license. Spending upwards of $10,000 to become licensed in a massage discipline that Bowen practitioners will never take advantage of, represents an unfair regulatory burden that is stifling this growing technique. Nothing in this bill prohibits a municipality from rejecting a business license for Bowenwork, it simply states that they cannot reject a Bowen practitioner solely because they don't have a massage license." Background. Bowen Therapy. According to the American Bowen Academy, "Bowenwork is a system of touch that initiates a series of responses through stimulation of the nervous, musculoskeletal, and fascial systems and the energetic pathways." According to information provided by the author, "Bowenwork certified practitioners engage in short 2-5 second light touch movements over various parts of a client's body. The client is fully clothed for the entire duration of the session which could last anywhere from 20 minutes to two hours. Bowen was developed in Australia about 60 years ago, and continues to grow in popularity in both England and the United States. It essentially works by triggering the body's natural ability to promote healing. These moves (on muscles, tendons, ligaments, and nerves) deliver signals to the nervous system that healing needs to occur. What makes Bowen unique is that it addresses the entire body, by restoring balance via the autonomic nervous system (ANS). It should be noted that unlike massage, chiropractic, or other similar healing arts disciplines, Bowenwork is largely hands off. Movements last two-five seconds followed by a rest period that could last as long as 5-7 minutes while the nervous system takes time to AB 2793 Page 5 adjust. During a typical hour-long session, the time a Bowen practitioners hands are on the body could be as short as 20-25 minutes. While all massage is bodywork, not all bodywork is massage." Massage Therapy. To practice massage therapy in California, a state-issued license is not required. However, massage practitioners may obtain a voluntary certification from the California Massage Therapy Council (CAMTC). Any person may practice massage therapy in compliance with local ordinances, but some jurisdictions require massage professionals to obtain the voluntary certification. Local ordinances vary and may include specifications for professionals (massage practitioners) and the businesses including educational standards, examination requirements, conditional use permits, hour restrictions, exclusionary zoning, distance requirements, moratoria on new businesses, background checks for owners and practitioners, prohibitions on outcall and mobile businesses, and conditional use permits. To some in the massage industry, these ordinances are often seen as barriers to opening and operating successful massage therapy businesses, and are aimed at deterring illegitimate businesses rather regulating healing arts businesses. This bill would specifically exempt bowenwork from being classified as the business of massage, potentially alleviating bowenwork practitioners from being subject to massage business ordinances and regulations in local jurisdictions. The author noted that "prior to 2013, new Bowen practitioners were granted "voluntary" massage licenses by the [CAMTC], even though Bowen has little in common with massage. The license allowed Bowen practitioners to easily receive a business license and set up shop. This changed in 2013 when [the CAMTC] ceased to give the voluntary massage licenses to new Bowen practitioners. A follow-up effort where Bowen sought to work with [the CAMTC] on a certification process went nowhere." AB 2793 Page 6 The voluntary certification of massage was a result of SB 731 (Oropeza), Chapter 384, Statutes of 2008. Prior to January 2, 2012, there were three pathways available for certification which allowed individuals with varying amounts of education an opportunity to become certified. As of January 1, 2015, all applicants for certification as a certified massage therapist must obtain 500 hours of education and pass an examination. In comparison, according to the American Bowen Academy, bowenwork practitioners complete 340 hours of training in order to become certified by the American Bowen Academy. A person using the term "certified massage practitioner" or "certified massage therapist" or any other term, such as "licensed," "certified," "CMP," or "CMT," that implies or suggests that the person is certified as a massage therapist or practitioner, without being certified by the CAMTC, would be considered an unfair business practice under BCP Section 4611. A practitioner practicing bowenwork would not be able to use the title "CMP" or "CMT" unless he or she has obtained a voluntary certification from the CAMTC to practice massage therapy. Other States. Forty states and Puerto Rico regulate the practice of massage through some form of licensure, which includes the completion of an educational program, background checks, and the passage of an approved examination. Two states offer a licensure or certification level, depending on the type of practitioner. Three states, including California, offer a certification for massage therapists; however, California is the only state to offer a voluntary certification to practice. In 2011, Oregon passed SB 454 which exempted bowenwork and other therapies from needing a massage licensure to practice. In 2015, Arkansas introduced House Bill 1589 to exempt bowen therapy or bowen technique from massage licensure requirements. However, some states, such as North Carolina, require a massage and bodywork therapy AB 2793 Page 7 license for those professionals practicing a number of modalities including the bowen technique. Massage Scope of Practice. Because California does not recognize massage therapy as a licensed profession and there is not a defined scope of practice, during the CAMTC's 2014 sunset review, the issue of a scope of practice for massage therapy was raised. As a result of AB 1147 (Bonilla, Gomez, and Holden) Chapter 406, Statutes of 2014, the CAMTC is required to complete a feasibility study of licensure for the massage profession, including a proposed scope of practice, legitimate techniques of massage, and related statutory recommendations (BPC Section 4620(a)(1)). The outcome of this study may help provide some clarification about the practice of massage therapy and those techniques that should be included within its scope. It is important to note, that under current law, there is not a defined scope of practice for massage therapy in California. BPC Section 4601(e) specifies a narrowly tailored scope of practice for massage therapy, which includes the definition of massage and does not prohibit those other licensed professions from practicing massage as allowed by their professional scope of practice as specified in the BPC or in the California Code of Regulations. Other Professions that Include Massage within their Scope of Practice. California has established scopes of practice and licensing regulation for physical therapy, acupuncture, cosmetology, chiropractic, and naturopaths. Each profession includes massage in some form and licensees are authorized to perform massage in accordance to each profession's respective practice act, including: Acupuncture. BPC Section 4937(b ) authorizes the holder of an acupuncturist license to perform or prescribe the use of Asian massage, acupressure, breathing techniques, exercise, AB 2793 Page 8 heat, cold, magnets, nutrition, diet, herbs, plant, animal, and mineral products, and dietary supplements to promote, maintain, and restore health. Barbering and Cosmetology. BPC Section 7316 specifies that practice of cosmetology includes massaging, cleaning or stimulating the scalp, face, neck, arms, or upper part of the human body, by means of the hands, devices, apparatus or appliances, with or without the use of cosmetic preparations, antiseptics, tonics, lotions, or creams. BPC Section 7316(b)(6) provides that cosmetologists may massage hands and feet. Chiropractic. California Board of Chiropractors Title 16 CCR Section 302 specifies the scope of practice for chiropractors includes the manipulation and adjustment of the spinal column and other joints of the human body. It further states that a chiropractor may manipulate the muscle and connective tissue as part of a chiropractic treatment and massage is listed as part of that treatment. Naturopaths. BPC Section 3640 specifies that a naturopathic doctor may among other things dispense, administer, order, and prescribe or perform the following: hot or cold hydrotherapy; naturopathic physical medicine inclusive of the manual use of massage, stretching, resistance, or joint play examination but exclusive of small amplitude movement at or beyond the end range of normal joint motion; electromagnetic energy; colon hydrotherapy; and therapeutic exercise. Physical Therapy. BPC Section 2620 defines physical therapy as the art and science of physical or corrective rehabilitation or of physical or corrective treatment of any bodily or mental condition of any person by the use of the physical, chemical, and other properties of heat, light, water, electricity, sound, massage, and active, passive, and resistive exercise, and shall include physical therapy evaluation, treatment planning, instruction and AB 2793 Page 9 consultative services. While the author contends that exempting bowenwork from the business of massage will alleviate practitioners from being required to obtain a voluntary certification in order to practice bowenwork, this bill does not prohibit local jurisdictions from regulating bowenwork businesses, including requiring educational components, examinations, background checks, conditional use permits, or specifying other requirements on businesses that offer bowenwork. ARGUMENTS IN SUPPORT: BowenUSA writes in support, "[this bill] is needed because professional Bowenwork practitioners feel trapped in a regulatory maze that is prohibiting them from practicing legitimately. Until 2013, it was common for the Massage Therapy Council (MTC) to grant professional Bowenwork practitioners voluntary massage licenses if they presented a Bowenwork certificate from the American Bowen Academy. Armed with a massage license, newly certified practitioners had no problem getting a business license from their local municipality. However, MTC has stopped giving Bowenwork practitioners massage licenses presumably because they do not believe Bowenwork is massage. The problem arises when practitioners go to get a business license and are confronted with the question, "Where is your massage license?" This problem is inhibiting the growth of small businesses and is leading to a confusing regulatory problem. For instance, the City of Roseville grants Bowenwork therapists a license, while Sacramento County does not. Currently, the only guaranteed way for Bowenwork practitioners to get a business license is if they have a massage license. Bowenwork practitioners who have spent thousands of dollars to become professionally certified through the American Bowen Academy should not have to spend thousands of dollars more on a massage license that will never be used. For the sake of regulatory consistency and giving Bowenwork practitioners the chance to thrive in California, we request that this AB 2793 Page 10 common-sense exemption be granted." ARGUMENTS IN OPPOSITION: None on file. POLICY ISSUES FOR CONSIDERATION: Given that the CAMTC is in the process of conducting a feasibility study on licensure including a proposed scope of practice for massage therapy, this bill may be premature. In order to clarify that bowenwork is not within the practice of massage therapy, the author should amend the bill to specify that bowenwork is not the practice of massage instead of the business of massage as currently stated in the bill. REGISTERED SUPPORT: BowenUSA REGISTERED OPPOSITION: None on file. Analysis Prepared by:Elissa Silva / B. & P. / (916) 319-3301 AB 2793 Page 11