BILL ANALYSIS �
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|Hearing Date:June 13, 2011 |Bill No:AB |
| |619 |
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SENATE COMMITTEE ON BUSINESS, PROFESSIONS
AND ECONOMIC DEVELOPMENT
Senator Curren D. Price, Jr., Chair
Bill No: AB 619Author:Halderman
As Amended:June 7, 2011 Fiscal: No
SUBJECT: Massage therapy.
SUMMARY: Changes the name of the Massage Therapy Organization to the
"California Massage Therapy Council" (CAMTC) and makes a number of
clarifying, conforming and technical changes to Massage Therapy Act
(Act) regarding the approval of schools providing training and
curriculum in massage, reimbursements of costs incurred by the CAMTC
for denying a massage certificate or disciplining a certificate
holder, the advertising and display of the massage certificate, and
the granting of a conditional certificate. Provides for severability
of provisions within the Act so that the invalidity of one provision
shall not affect other provisions within the Act.
Existing law:
1)Provides for certification of massage practitioners and massage
therapists, as defined, by the Massage Therapy Organization
(MTO) and specifies that the MTO is a nonprofit organization
meeting specified requirements, and imposes certain duties on
the MTO. (Business and Profession Code (BCP) �� 4600 (e),
4600.5 (a) and (b)(2))
2)Provides that the MTO is to be governed by a board of directors
(Board) which shall include: (BCP � 4600.5 (b)(1))
a) Two representatives from each professional society,
association, or other entity whose membership is comprised of
massage therapists and that chooses to participate in the MTO
and that has a dues-paying membership in California of at
least 1,000 individuals for the last three years and that
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shall have by-laws that requires its members to abide by a
code of ethics.
b) One member selected by each statewide association of
private postsecondary schools incorporated on or before
January 1, 2010, whose members schools have together had at
least 1,000 graduates in each of the previous three years
from approved and registered, as defined, massage therapy
programs.
c) One member selected by the League of California cities.
d) One member selected by the California State Association of
Counties.
e) One member selected by the Department of Consumer Affairs.
f) One member appointed by the California Community College
Chancellor's Office.
3)Provides that the above mentioned entities may choose not to
exercise the right of selection of a member to serve on the MTO
Board and allows for the MTO's bylaws to establish a process for
appointing other professional directors as determined by the
Board. (BCP � 4600.5 (b)(1))
4)Requires the MTO to issue a " massage practitioner " certificate to
an applicant, who submits a written application and provides
satisfactory evidence that he or she meets all of the specified
education, experience or examination requirements, or has a
current valid license from a local jurisdiction and meets other
education and/or experience requirements. (BCP � 4601 (b))
5)Requires the MTO to issue a " massage therapist " certificate to an
applicant who submits a written application and provides with
satisfactory evidence that he or she meets all of the specified
education, experience or examination requirements.
(BCP � 4601 (c))
6)Requires the MTO to issue a certificate to an applicant who meets
the other qualifications provided for and holds a current and
valid registration, certification, or license from any other
state whose licensure requirements meets or exceeds those
defined above. (BCP � 4601 (d))
7)Provides that the MTO shall determine whether or not a school
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provides education that meets the requirements of certification
and requires the MTO to investigate, if necessary, whether or
not an applicant has actually completed the education he or she
claims in his or her application and to conduct oral interviews,
if necessary, of any applicant to make any investigation to
establish that the information received is accurate and
satisfies any criteria established pursuant to the Act. (BCP �
4601 (g))
8)Provides that prior to issuing a certificate to the applicant or
designating a custodian of records the MTO shall obtain
fingerprints, which may be in an electronic format, from an
applicant for certification as a massage therapist or massage
practitioner for the purpose of conducting a criminal background
check, and specifies that the Department of Justice (DOJ) shall
provide the MTO with the specified information relating to an
applicant's criminal history. (BCP � 4601.3)
9)Provides that the MTO may discipline a certificate holder by any,
or a combination of, the following methods: a) probation with
conditions; b) suspending the certificate for a period not to
exceed one year; c) revoke the certificate; d) provide for
conditional certificate suspension; e) any other appropriate
action as authorized by its by-laws. (BCP � 4602 (a))
10)Requires the MTO to suspend a certificate if the holder has been
arrested and charged with any sexually related or
prostitution-related crime and to notify the holder and his or
her employer of the suspension, and if the charges result in a
conviction, the MTO shall permanently revoke the certification;
however, if the holder is acquitted of the charges, the MTO
shall re-instate the certification. (BCP � 4602 (c))
11)Requires the MTO to provide specified information regarding
certificate holders to any local law enforcement or other agency
that regulates massage therapy, and likewise the MTO shall
accept and review any information pertaining to a certificate
holder provided by local law enforcement or other agency that
regulates massage therapy, and shall have the responsibility to
take any actions as authorized under the Act and are warranted
by the information. (BCP � 4602.5)
12)Provides for various grounds for discipline against a
certificate holder or for denial of a certificate to an
applicant, including: unprofessional conduct; procurement of
certificate by fraud; misrepresentation or mistake; conviction
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of a felony or misdemeanor substantially related to their
qualifications, functions or duties, or committing any
fraudulent, dishonest, or corrupt act that is substantially
related; and, committing any act punishable as a sexually
related crime. (BCP � 4603)
13)Provides that no certificate holder or certificate applicant may
be disciplined or denied a certificate except according to
specified due process procedures which have been set forth in
the articles or bylaws of the MTO and that a certificate
applicant or certificate holder who is denied of disciplined
shall be liable for any charges incurred, services actually
rendered or fees incurred by the MTO in the denial of the
certificate or discipline of the certificate holder. (BCP �
4603.1)
14)Provides that the MTO may grant a massage practitioner
certificate to any person who meets specified education and
experience requirements and who has either been granted a permit
or license from a California local city or county or from
another state. (BCP � 4604 (a))
15)Provides that the MTO may also grant a conditional certificate
to allow the applicant sufficient opportunity to comply with
additional education and practice hours and shall within 5 years
provide proof of completion of the additional hours required,
and upon successful completion of the additional hours shall be
issued a certificate. However, the MTO shall immediately revoke
the conditional certificate if the time period specified expires
without proof of completion of the requirements for education
and practice hours. (BPC � 4604 (c))
16)Provides that the holder of a certificate issued by the MTO
shall be able to practice massage in any city, county, or city
and county, consistent with the Act and the qualification
established by his or her certification, and shall not be
required to obtain any other license, permit, or other
authorization, except as provided under the Act. (BPC � 4612
(a))
17)Provides that a city, county, or city and county shall not enact
an ordinance that requires a license, permit, or other
authorization to practice massage by an individual who is
certified pursuant to the Act and who is practicing consistent
with the qualifications established by his or her certification
and provides that no provision of any ordinance enacted by a
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city, county, or city and county that is in effect before the
effective date of this Act, and that requires a license, permit,
or other authorization to practice massage, may be enforced
against an individual who is certified under the Act. (BPC �
4612 (a))
18)Provides that nothing in the Act shall prevent a city, county,
or city and county from adopting or enforcing any local
ordinance governing zoning, business licensing, and reasonable
health and safety requirements for massage establishments or
businesses that employs or uses persons who are not certified
pursuant to the Act.
(BPC � 4612 (a))
19)Provides that a local government may subject any massage
business or establishment to reasonable inspections to verify
conformance with local ordinances and fire, health, and safety
requirements, and may also require the operator of a massage
business to notify it of any change in business name,
management, or transfer of ownership to another person. (BPC �
4612 (b))
20)Provides that an operator or a massage business that is
certified by the MTO and/or uses only individuals certified by
the MTO shall be responsible for the conduct of his or her
employees and shall be subject to suspension of any required
local business license or permit if violations of the Act or a
local ordinance occur. (BPC � 4612 (c))
21)Subjects the Act and the MTO to review by the former Joint
Committee on Boards, Commissions and Consumer Protection and
repeals the provisions of the Act on January 1, 2016. (BPC ��
4615, 4620)
This bill:
1) Changes the name of the Massage Therapy Organization to the
"California Massage Therapy Council" (CAMTC).
2) Clarifies that schools, as defined, which provide education,
training and curriculum in massage, shall be approved by the CAMTC
and if they meet other specified requirements.
3) Eliminates the liability on the part of a certificate applicant or
certificate holder for any charges incurred, services actually
rendered or fees incurred by the CAMTC in the denial of the
certificate or discipline of the certificate holder.
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4) Provides that the CAMTC shall be sued only in the county of its
principal office.
5) Provides that a certificate holder shall include the name under
which he or she is certified and his or her certificate number in
any and all advertising and shall display his or her certificate at
his or her place of business.
6) Specifies that a conditional certificate provided by the CAMTC
shall be immediately nullified rather than revoked, without further
action by the CAMTC, if the time period specified by the CAMTC
expires without proof of completion of the requirements for
additional education and practice hours.
7) Authorizes the CAMTC to revoke the massage certificate of an owner
or operator of a massage establishment or business, as specified,
if his or her employees violate provisions of the Act.
8) Provides that the Act shall be liberally construed to effectuate
its purposes and that if any provisions of the Act are held invalid
that the invalidity shall not affect other provisions or
applications of the Act and that it can be given effect without the
invalid provisions or application, and to this end the provisions
of the Act are severable.
9) Subjects the Act and the CAMTC to review by the newly created Joint
Sunset Review Committee of the Legislature.
FISCAL EFFECT: None. This measure is keyed "non-fiscal" by
Legislative Counsel.
COMMENTS:
1.Purpose. This measure is sponsored by the American Massage Therapy
Association -
CA Chapter (AMTA-CC). According to the Sponsor, over 40,000 massage
professionals practice in California. Some are independent
practitioners while many others are employees of spas and
chiropractors. In the almost two years that statewide voluntary
massage certification has been in place, over 26,000 have applied
for certification, and thus far 20,000 have successfully
demonstrated proof of qualification for certification. Moving
forward, the Sponsor sees the need for some technical and clean-up
changes to improve the original law, SB 731 (Oropeza, Chapter 384,
Statutes of 2008).
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This measure first names the organization which currently administers
the statewide certification of massage therapists as the "California
Massage Therapy Council" (CAMTC). This will remove any possible
confusion when references are made to "Massage Therapy Organization"
which is responsible for implementing the Massage Therapy Act.
Other changes include:
a) Clarifies the responsibility for approving schools which train
and educate massage therapists. Confusion arises because a
school may be approved by another agency or entity, and that this
school should automatically be given approval by the CAMTC. It
has always been the intent of the Act that the CAMTC has ultimate
responsibility to provide approval of the school for purposes of
accepting the required number of hours for certification.
b) Specifies that litigation will be in the county of the CAMTC's
office. The current language regarding current fees and
appealing disciplinary actions is replaced with clarified
language that includes a requirement that should CAMTC be sued it
will occur in its own county. This is a common requirement, as
indicated by the Sponsor. The Sponsor believes it would become
very costly should the organization be sued in various locations.
This ensures the funds of the organization are spent effectively
and wisely in legal matters.
c) Clarifies that a conditional certificate automatically ends
when time expires. This item as explained by the Sponsor will
clarify that conditional certificates are automatically nullified
should the requirements for the certificate not be met in the
time allotted. This will assure that no formal action would be
required by the CAMTC should an applicant decide not to pursue
the certification or for whatever reason not complete the process
for certification. The conditional certification would simply
end.
d) Provides that the owner/operator of a massage
business/establishment could have their certificate from CAMTC
revoked for employee misconduct. According to the Sponsor,
current law states that a certified massage therapist who is an
owner or operator of a massage business is responsible for the
conduct of their employees. This ensures a professional
environment for the consumer and the employees. This amendment
would put teeth in the requirement by adding that the
owner/operator may lose their statewide certification should they
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allow unprofessional conduct by their employees.
e) Provides for a severability clause. The Sponsor indicates
that this is a technical clause which is common and ensures
that if for some reason one part of the massage therapy
chapter is held invalid that does not mean the entire chapter
is invalid, on the section in question.
2.Background.
a) The Practice of Massage Therapy in California. Massage
has grown into the third most requested Complementary and
Alternative Practice; only chiropractic and relaxation
techniques are more popular, according to the American
Massage Therapy Association, California Chapter (AMTA-CA).
Massage is used for managing stress, enhancing
self-awareness, maintaining health, increasing athletic
performance, rehabilitating from injuries, and as an adjunct
to medical treatment for a wide variety of conditions.
Estimates based on surveys, professional affiliations, and
liability insurance show that up to 40,000 massage therapists
are currently practicing in California. Exact numbers are
hard to pinpoint given the high turnover rate of the
profession. Some massage therapists are independent
practitioners while a large number of others are employees of
spas and chiropractors.
According to the AMTA-CA, 220 schools in California are now
approved to offer instruction in massage, with programs
ranging from 100 hours to 1,000 hours. In addition to the
large number of proprietary schools approved by the Bureau of
Private Post-Secondary and Vocational Education or nationally
accredited, massage as a vocation is now taught in
cosmetology schools, trade schools, and several community
colleges.
Titles used in California by the massage profession include:
massage therapist, massage practitioner, certified massage
therapist, massage technician, bodyworker, masseur, masseuse,
myotherapist, Nationally Certified in Therapeutic Massage and
Bodywork. Where no local regulations exist, any title can be
used.
The National Certification Board for Therapeutic Massage and
Bodywork (NCBTMB) certifies massage therapists and
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bodyworkers on behalf of the profession. NCBTMB developed
and administers the National Certification Examination for
Therapeutic Massage and Bodywork. There is also a nationally
recognized certification exam for practitioners for
certification in Asian bodywork therapies. This is
administered by the National Certification Commission for
Acupuncture and Oriental Medicine.
According to the AMTA-CA, consumers do not know the difference
between a purchased certification and a certification that
requires a specific amount of training. Different
jurisdictions have different standards which would indicate
that there is no local government agreement about what
standards are necessary and sufficient.
b) Prior Law and Regulation in California Cities and Counties
of Massage Businesses. AB 3325 (McAllister, Chapter 1352,
Statutes of 1976) enacted the prior local authority to
regulate the business of massage. In an analyses of that
bill, it is stated that the purpose of the bill is to clearly
state that local governments have the authority to regulate
the operation of massage businesses through licensing
procedures if they so desire.
The law allowed cities and counties to condition the issuance
of a massage license upon proof that the massage personnel
and the owners or operator of such businesses have not been
convicted of certain sex-related crimes. It was argued by
some that this legislation was enacted to deal in part with
the adult-oriented sex business, but in doing so, legitimate
massage businesses were subject to local ordinances that
inappropriately and oppressively regulated them as "adult
entertainment." Some examples are restrictive zoning,
excessive fees, VD tests, required showers and separate
restrooms, and prohibited home visits. Because local
jurisdictions controlled the regulation of massage, local
ordinances could be vastly different.
The perception of massage as a vice resulted in many cities
requiring expensive conditional use permits. Restricting
massage businesses from opening within 1,000 feet of schools,
churches, or residences effectively zoned massage out of many
small cities. Proponents of state regulation argued that
local regulation treats professionals and "massage parlors"
alike and that consumers have a problem knowing how to
distinguish legitimate massage practitioners from "massage
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parlors."
c) Current Regulation of Massage Therapists and Their
Businesses.
In February 2003, Assembly Member Kehoe introduced AB 1388 ,
which was sponsored by the AMTA-CA. As introduced, the bill
would have established the Massage Therapy and Bodyworks
Commission in the Department of Consumer Affairs to register
and regulate massage therapists and bodyworkers. It was
referred to the Assembly Business and Professions Committee;
however, it died in that Committee without being heard.
Although there was significant discussion surrounding the
issue of state regulation of massage therapy, interested
parties could not reach any type of agreement as to what the
regulatory scheme should be.
In January 6, 2005, the issue of whether California should
shift the regulation of massage therapists from the local
level to the state level and what type of regulatory
oversight should be provided was submitted to review by the
Joint Committee on Boards, Commissions and Consumer
Protection (Joint Committee). This was part of the "sunrise
review process" which provides that any new proposals to
create new licensure or regulatory categories, change
licensing requirements, modify scope of practice, or create a
new licensing board may be referred to the Joint Committee by
the standing committees of the Legislature. (Sunrise review
is also required under Section 9148 et seq. of the Government
Code for any new categories of licensure or creation of a new
licensing board.) This permits an opportunity for all
interested parties to participate in discussing both the pros
and cons of such a proposal and for the Joint Committee to
make recommendations to the Legislature regarding these
proposals.
The Joint Committee found that massage therapy is "regulated in
California by a chaotic mish-mash of local vice ordinances
primarily aimed at controlling illicit 'massage parlors.' In
essence, the current system sought to regulate illegal
activity in the guise of professional licensing." The Joint
Committee concluded that the current system fails to serve
either the public or the profession and that it is
appropriate to streamline the regulation of massage therapy
at the state level in order to create a more uniform
standard. The Joint Committee, on April 12, 2005, issued its
recommendation and stated that regulation of massage
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therapists should be shifted from the current local
jurisdiction approach to a state-based approach to provide
for more uniform standards. It was also recommended that the
state-based approach should be flexible enough to serve the
needs of the public, the profession, as well as the
legitimate interests of the local governments who currently
use existing law for legitimate public policy purposes.
The recommended regulatory regime for massage therapy was
modeled after regulatory regimes for tax preparers (BPC �
22250 et seq.) and interior designers (BPC � 5800 et seq.)
which provide for statutorily created non-profit corporations
that have the authority to certify qualified individuals in
their respective professions.
SB 412 (Figueroa) was introduced in 2005 and was sponsored by
the AMTA-CA. SB 412 became a two-year bill and lengthy
discussions took place with the League of Cities, California
State Association of Counties, local law enforcement, those
representing private and public massage schools, massage and
related massage therapy associations and organizations,
chiropractic and physical therapy associations. This
measure, however, failed passage on the Assembly Floor at the
end of Session in 2006, because of the opposition from both
the chiropractic and physical therapy profession regarding
the definition of "massage therapy."
SB 731 (Oropeza, Chapter 384, Statutes of 2008) was then
introduced in 2008, and was almost identical in every aspect
to SB 412. The only difference was in the definitions of
"approved" and "registered schools" and in the definition of
massage therapy. SB 731 which implemented the Massage
Therapy Act, shifted the regulation of massage therapists
from local jurisdictions to a state-based approach and
created a voluntary statewide certification of massage
therapists and the Massage Therapy Organization (MTO) with
the authority to implement a certification program. The
purpose of the MTO was to make the process of certification
the same throughout the state, rather than different in each
city and county. The California statewide voluntary massage
certification program allowed for work in multiple California
locations without the need for multiple permits or fees and
multiple and differing requirements to provide massage
therapy services.
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Recently the MTO was renamed the CAMTC by the organization. As
indicated, the CAMTC evaluates the qualifications of massage
professionals and issues certifications in California. There
are two levels of certification, Certified Massage Therapist
(CMT) and Certified Massage Practitioner (CMP), each with
different educational requirements. If a CMT or CMP violates
terms of certification, CAMTC can suspend or revoke their
certification. Although California law grants title
protection, there is not defined scope of practice for
massage professionals. Local cities and counties cannot
require local massage licenses/permits of CAMTC CMTs or CMPs,
but they can require permits dealing with reasonable health
and safety concerns. They will also generally require a
business license of the business owner, independent
contractor, or tenant.
3.Arguments in Support. The Associated Bodywork & Massage
Professionals (ABMP) is in support of this measure and points
out that the primary benefit of the passage of SB 731 was to
provide massage therapists some financial relief from
restrictive and discriminatory local ordinances and from having
duplicative processes to practice in multiple locations. The
ABMP indicates that the current certification program of CAMTC
is working with over 20,000 individuals having met the
qualifications for certification and are enjoying the economic
benefit of having to obtain only one credential to practice
massage anywhere in California. The ABMP believes these are
needed technical changes which will improve the Act.
The California Police Chiefs Association, Inc. is in support and
indicates that these are clean-up provisions �to the Act] that
are agreed upon by both the law enforcement community and the
body-work community. The Police Chiefs "look forward to
continuing to work collaboratively in order to assure the
elevation of the body work profession while exorcizing the
prostitution and human traffic elements that have attempted to
invade the profession."
SUPPORT AND OPPOSITION:
Support:
American Massage Therapy Association - California Chapter (Sponsor)
Associated Bodywork and Massage Professionals
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California Police Chiefs Association, Inc.
Opposition: None on File as of June 8, 2011.
Consultant:Bill Gage