BILL ANALYSIS �
SB 122
Page 1
Date of Hearing: June 26, 2012
ASSEMBLY COMMITTEE ON BUSINESS, PROFESSIONS AND CONSUMER
PROTECTION
Mary Hayashi, Chair
SB 122 (Price) - As Amended: June 21, 2012
SENATE VOTE : 30-6
SUBJECT : Healing Arts.
SUMMARY : Makes a number of changes to law pertaining to the
Medical Board of California, (MBC), the California Board of
Registered Nursing (BRN), and the California Massage Therapy
Council (CAMTC). Specifically, this bill :
1)Authorizes the MBC to issue a physician and surgeon license to
an applicant who: successfully completes a medical curriculum
in a medical school that is not approved or recognized by the
MBC or that has been disapproved by the MBC; passes a written
exam deemed equivalent to that administered in California; has
held an unrestricted physician and surgeon license to practice
medicine in another state or country or as a member of the
active military, United States Public Health Services, or
other federal program for a minimum of five years; has no
history of disciplinary action; has not been the subject of
adverse judgments or settlements; has completed specified
postgraduate training; and, has not committed any acts or
crimes constituting grounds for license denial, as specified.
2)Requires the MBC to review and process any application
received from applicants described above.
3)Deletes provisions requiring a school of nursing that is not
affiliated with an institution of higher education to make an
agreement with such an institution for purposes of awarding
nursing degrees and instead authorizes the BRN to grant
approval to these institutions to grant nursing degrees.
4)Requires the BRN to have a memorandum of understanding with
the Bureau for Private Postsecondary Education (BPPE) to
delineate the powers of the BRN to review and approve schools
of nursing and the powers of the BPPE to protect the interest
of students attending institutions governed by the Private
Postsecondary Education (PPE) Act of 2009.
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5)Subjects a school of nursing or a new nursing program seeking
approval by the BRN to the following fee schedule:
a) A fee of $5,000 for approval of a nursing program;
b) A fee of $3,500 for continuing approval of a nursing
program established after January 1, 2013; and,
c) A fee of $500 for processing authorization of a
substantive change to an approval of a school of nursing.
6)Requires the BRN to issue a cease and desist order to a school
of nursing not approved by the BRN and to notify the BPPE and
the Attorney General of such a school. Makes it
unprofessional conduct for any registered nurse (RN) to
violate or attempt to violate or to assist or abet the
violation of this provision.
7)Requires meetings of the BRN to be held in northern and
southern California.
8)Defines an operator of a massage business to mean a person,
whether owner or nonowner, who manages or operates a massage
business.
9)Allows the use of credit unit equivalents (in addition to
hours) in determining completion of required education for
massage practitioners and massage therapists.
10)Revises the dual path to licensure for massage therapists by
adding the following educational requirements to the option
that currently requires only the passage of a competency
assessment examination: successful completion, at a single
approved school, of curricula in massage and related subjects
totaling a minimum of 250 hours that incorporates appropriate
school assessment of student knowledge and skills. Included
in the hours shall be instruction addressing anatomy and
physiology, contraindications, health and hygiene, and
business and ethics, with at least 100 hours of the required
minimum 250 hours devoted to these curriculum areas.
11)Requires certificates and identification cards issued by the
CAMTC to be surrendered to CAMTC by any holder whose
certificate has been suspended or revoked.
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12)Allows the CAMTC to immediately suspend the certificate of a
certificate holder upon receipt of clear and convincing
evidence that the holder has committed an act punishable as a
sexually related crime or felony, and requires the CAMTC to
consider any available credible mitigating evidence before
making a decision to suspend a certificate, as specified.
13)Provides the holder of a suspended certificate the right to a
hearing within 30 days, and requires the CAMTC to send notice
of suspension to the certificate holder, businesses on record
with the CAMTC as employing or contracting with the holder,
and the local permitting authority with jurisdiction over the
employing or contracting businesses, as specified.
14)Authorizes a law enforcement agency or local government
agency with responsibility for regulating massage or massage
business, upon request of the CAMTC, to provide information to
the CAMTC concerning an applicant or certificate holder,
including, but not limited to: the current status of any
application or local permit; any history of disciplinary
action taken against the applicant or certificate holder; any
information related to criminal activity or unprofessional
conduct allegedly engaged in by an applicant or certificate
holder, including, but not limited to, police reports and
declarations of conduct; the home and work addresses of the
applicant or certificate holder; and, any other information in
the law enforcement agency's or other local government
agency's possession that is necessary to verify facts or
implement laws governing massage therapists.
15)Authorizes the CAMTC to deny an application or discipline a
certificate holder for a conviction of any infraction,
municipal code violation, or liability in an administrative or
civil action that is substantially related to the
qualifications, functions, or duties of a certificate holder,
in which event the record of the conviction or other judgment
shall be conclusive evidence of the crime or liability.
16)Requires a certificate holder to have his or her
identification card in his or her possession while providing
massage services.
17)Requires a certificate holder, upon request at the location
where he or she is providing massage services, to provide his
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or her full name and certificate number to a member of the
public, the CAMTC, or a member of law enforcement or a local
government agency charged with regulating massage.
18)Specifies that business license fees charged to a massage
business or establishment can be no higher than the lowest fee
that is applied to other individuals and businesses providing
professional services, as specified.
19)Makes a certified massage business owner responsible for the
conduct of all employees or independent contractors working on
the premises of the business.
20)Specifies that local jurisdictions can only ask for
information from applicants for a massage business license
that is the same as that required of other individuals and
professionals providing professional services, as specified.
21)Specifies that the background check that a local jurisdiction
can require of an owner or operator of a massage establishment
may include, but is not limited to, a criminal background
check, including requiring submission of fingerprints. If a
noncertified owner's or operator's background check results in
a finding that the local jurisdiction determines is relevant
to owning or operating a massage establishment, then specified
rights to practice shall not apply to that establishment and
the local jurisdiction may regulate that establishment in any
manner it deems proper that is in accordance with the law.
22)Specifies that nothing in statutes governing massage therapy
shall be construed to restrict or limit in any way the
authority of a local jurisdiction to adopt a local ordinance
restricting the opening of a new massage establishment in a
location in which a massage establishment has been closed due
to criminal activity.
EXISTING LAW :
1)Provides for the regulation of various health professions by
regulatory boards within the Department of Consumer Affairs
(DCA).
2)Licenses and regulates the practice of medicine via the MBC
within the DCA.
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3)Authorizes the MBC to determine whether materials submitted as
proof of completing requisite medical education and training
by applicants for a physician and surgeon certificate meet
those requirements, and to determine whether medical schools
meet statutory and regulatory requirements for the provision
of medical education and training.
4)States that protection of the public shall be the highest
priority for the MBC in exercising its licensing, regulatory,
and disciplinary functions and that, whenever the protection
of the public is inconsistent with other interests sought to
be promoted, the protection of the public shall be paramount.
5)Establishes the Nursing Practice Act (NP Act) which provides
for the certification and regulation of RNs, nurse
practitioners and advanced practice nurses by the BRN within
the DCA.
6)Establishes the BPPE within DCA and provides for BPPE
oversight and regulation of California private postsecondary
institutions pursuant to the PPE Act, including a school of
nursing that is not accredited by accrediting agencies
affiliated with the Western Association of Schools and
Colleges or regional accrediting agencies recognized by the
United States Department of Education (USDE).
7)Provides for the voluntary certification of massage
practitioners and massage therapists by the CAMTC.
FISCAL EFFECT : Unknown
COMMENTS :
Purpose of this bill . According to the author, "It has recently
come to the attention of the Author that physicians who have
been practicing in other states in good standing for many years
are being refused a license to practice in California because
the medical school they attended has not been approved by the
MBC or may have at some time been disapproved by the MBC. The
Author believes that the MBC should at least be able to have the
discretion to review the practice and other qualifications of
the physician and surgeon who has been practicing in another
state and make a determination whether they are competent to
practice within California even though they may have attended a
medical school that is currently not on the approved list of
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medical schools of the MBC. Current law does not permit the MBC
to make such a determination. There are other health related
boards which have the discretion to make a determination about
licensing of out-of-state practitioners about whether they
should practice in California, regardless of whether or not the
school they attended has been approved. This includes the Board
of Behavioral Sciences, the Psychology Board, the
Speech-Language Pathology and Audiology Board, and the
Veterinary Medicine Board. With the potential shortage of
physicians and surgeons in this state and the advent of National
Health Care Reform, this will provide greater reciprocity for
physicians to practice in California. Out-of-state physicians
will be reviewed for licensure based on their five-year or more
history as a medical practitioner as well as their education and
training and in meeting the other requirements to practice in
this state. Their application for a physician and surgeon's
license will not be rejected just because the medical school
does not appear on the MBC's approved list of schools."
The author also states, "The BRN believes that the following
changes will provide improvements to the BRN's nursing school
approval process by: (1) Granting complete authority over the
approval of nursing schools to the BRN rather than requiring a
duplicative process under the BPPE, and to offset costs of the
BRN in both approving and regulating nursing schools; and (2)
Providing the BRN with the ability to issue a cease and desist
order to a school of nursing which has not been approved (or has
been disapproved) by the BRN and requiring the BRN to inform the
Attorney General of a school which continues to operate
illegally. The measure will also make some other clarifying and
technical changes regarding the nursing school approval process
and to meetings of the BRN."
The author also provided the following rationale for the bill's
changes to statutes governing the CAMTC:
This bill defines "operator" as someone who owns or manages a
business. Under current law, cities and counties can conduct
background checks of non-certified owners of massage businesses.
Due to the fact that often the owner is not on site or involved
in operations, city attorneys have requested the right to
investigate a person who has substantial authority over the
operation of the establishment, such as hiring and firing of
certified massage professionals.
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This bill allows education to be "250 hours or the credit unit
equivalent" and "500 hours or the credit unit equivalent." The
USDE has issued new rules for recognizing school credits issued.
Currently, CAMTC converts credits to hours but some states have
recognized in rules that they will accept both. California
schools have suggested that CAMTC do the same to avoid confusion
regarding student financial aid.
This bill adds a requirement that a person be qualified as a
massage practitioner in addition to passing an approved exam.
Current law has a loophole though which a person without any
massage training can qualify for certification by passing an
exam that requires no proof of education. In California, it has
been discovered that people were taking test review preparation
courses on the internet without any supervised massage
education. To prevent this, CAMTC currently does not recognize
the Massage and Bodywork Licensing Examination (MEBLEx), which
was developed by the Federation of State Massage Therapy Boards
and is currently used by 36 states, the District of Columbia,
Puerto Rico and the Virgin Islands for state licensing purposes
and does not set a requirement for education because each state
(except for California) sets their own standard in order to sit
for the exam. This provision will allow an applicant who has at
least 250 hours of approved education to qualify at the higher
tier by passing an exam, and would allow CAMTC to recognize the
MEBLEx.
This bill specifies that the certificate and ID card are the
property of CAMTC and shall be surrendered upon suspension or
revocation. This is standard practice for suspended or revoked
certifications and licenses
This bill adds to grounds for immediate suspension of
certification acts of unprofessional conduct based on clear and
convincing evidence of a sexually related crime or felony based
on sworn declarations, which was requested by law enforcement
and the enforcement division of CAMTC.
This bill allows law enforcement or a local government agency to
provide information to CAMTC regarding a certificate holder or
applicant, including the status of a local permit, disciplinary
actions, criminal activity or unprofessional conduct, police
reports and declarations of conduct. A small number of city
attorneys, including from Los Angeles, do not believe that local
governments have the authority to provide information to CAMTC,
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resulting in approval of applicants who would otherwise be
denied. All applicants sign an authorization for release of
such information to CAMTC.
This bill adds to the grounds for denial or discipline an
infraction, municipal code violation or liability in an
administrative or civil action that is substantially related to
the practice of massage. It is common to charge relevant crimes
such as solicitation as infractions, civil citations or
municipal code violations. Administrative and civil citations
are alternatives to criminal proceedings against a
person/business for violation of the city's laws. Government
Code specifically authorizes cities to make violations of
ordinances subject to a civil fine or penalty instead of the
usual criminal fine. These citations are subject to appeal and
ultimately can be challenged in court. Currently, defense
attorneys are advising clients to plea to infractions to avoid
denial or discipline by CAMTC.
This bill requires that the ID card be in the possession of the
therapist while providing massage and that he or she display
only an original certificate. This is a city request. The
certificate itself does not have a photo. Other professions
require only original certificates/licenses be displayed.
This bill requires certified professionals to provide their full
name and certification number to the public, CAMTC or law
enforcement upon request. The public has a right to know who
their massage therapist is and whether they are certified.
This bill specifies that the business license fees can be no
higher than the lowest fee charged other professionals. This is
a city request. Currently, most cities have multiple rates for
professionals. In some cases this will result in lower fees.
This bill clarifies that an application for a business license
for businesses in which everyone provided is certified shall be
the same as that required of other individuals and professionals
providing professional services. This is a city request for
clarification.
This bill makes the certified owner responsible for the conduct
of all employees or independent contractors working on the
premises of the business. The current language has a loophole
whereby if anyone providing massage is not certified, the owner
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cannot be held responsible for the conduct of those providing
massage on the premises.
This bill allows the owner/operator background check to be 10
years and include live scan and criminal background check. If
the owner background check results in findings of history
relevant to owning or management of a massage business, certain
provisions do not apply. Several city attorneys interpret
current language as prohibiting checking 10 years work and home
address history (as CAMTC does on the applicant for
certification) or including a criminal background check and live
scan. The law does not currently allow a city or county to
prevent a person from opening or operating a massage business as
there are no consequences should the background investigation
reveal offenses substantially related to the operation of a
massage business.
This bill states that local jurisdictions have the authority to
restrict the ability of a new massage business to open for a
period of one year in any location in which a massage business
has been closed for criminal activity. This is a city request.
It is common for illicit businesses to change ownership and
continue the same type of business. Nuisance abatement, which
prohibits any use of the site for one year, is costly and
burdensome on the city and county. The revolving door of
illicit businesses is a huge problem for cities and counties.
Background . Long-standing statutes and regulations govern the
approval of medical schools, including international medical
schools, by the MBC, which carries out this duty through its
Division of Licensing. The MBC's medical school approval
process is a thorough and rigorous assessment of an
institution's competency in meeting California's statutory and
regulatory requirements for the education and training of
medical doctors. These requirements were designed to ensure the
integrity of the profession and protect health care consumers.
Specific statutory requirements apply to international medical
schools. A school that applies to the MBC for approval must
complete and submit a self-assessment report that collects
information about the institution's mission and objectives,
organizational structure, curriculum, governance, faculty,
admissions and promotion standards, financial resources,
facilities, medical students, records, branch campuses, and
affiliation agreements. The MBC may request follow-up
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information and may require a site visit before approving or
disapproving a medical school, which is a lengthy and
labor-intensive process. A school that has been neither
approved nor disapproved is considered unrecognized.
Even with the MBC's robust review process, hundreds of approved
medical schools are listed on the MBC's website in dozens of
countries. Only 10 disapproved schools are listed, the last of
which was disapproved in 2007. Approximately 75 medical schools
are undergoing the MBC's medical school approval process, and
the MBC has approved about 10 or 12 schools in the past nine
months.
This bill, as recently amended in the Assembly without review by
a Senate Committee, allows the MBC to issue a physician and
surgeon's certificate to an applicant who has completed his or
her medical education at a school that is not approved or
recognized by the MBC or that has been disapproved by the MBC,
with specifying conditions. The bill also requires the MBC to
review and process any application received from such
applicants.
The author has not provided compelling evidence as to the need
for this provision, or any information suggesting the MBC's
current medical school evaluation process is deficient or
problematic. These provisions have the potential to render
meaningless California's current statutory requirements for the
education and training of physicians and the institutions that
provide this education and training, negate the value of schools
that have been approved, and weaken the standards established to
ensure protection of the public. They also pose a significant
burden on the MBC in reviewing and processing applications from
any individuals who have attended unapproved or disapproved
schools, possibly forcing the MBC to review these institutions
on a case-by-case basis rather than through its established
process on an institutional basis. The Committee may wish to
consider whether these provisions are necessary or merited.
The BRN is responsible for regulating the practice of RNs in
California, including implementation and enforcement of the laws
and regulations related to nursing education, licensure,
practice and discipline.
According to information provided by the author, the average
length of time for initial BRN approval of a nursing school
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application is 18 months, but there have been instances when the
process has taken four to five years, especially if the
applicant is a for-profit institution. With over 41,500
qualified applicants in 2009-10 and the ability of both public
and private programs to admit only about 14,200 applicants in
2009-10, the BRN must find ways to improve its approval process
so that private for-profit schools have an equal chance of
meeting the requirements to provide nursing programs.
The BPPE is generally responsible for protecting consumers and
students against fraud, misrepresentation, or other business
practices at private postsecondary institutions that may lead to
loss of students' tuition and related educational funds;
establishing and enforcing minimum standards for ethical
business practices and the health and safety and fiscal
integrity of postsecondary education institutions; and,
establishing and enforcing minimum standards for instructional
quality and institutional stability for all students in all
types of private postsecondary educational and vocational
institutions.
SB 731 (Oropeza), Chapter 384, Statutes of 2008, created
voluntary statewide certification of massage therapists by the
Massage Therapy Organization (MTO). 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
certification allows for work in multiple California locations
without the need for multiple permits or fees.
The MTO was renamed the CAMTC by the organization. CAMTC
evaluates the qualifications of massage professionals and issues
certifications in California. There are two levels of
certification, massage therapist and massage practitioner, each
with different educational requirements. If a certificate
holder violates terms of certification, CAMTC can suspend or
revoke their certification. Although California law grants
title protection, there is no defined scope of practice for
massage professionals. Scope of practice questions therefore
fall under what insurance providers will cover in the event of a
claim and what falls outside the exclusive scope of practice of
licensed health care professions.
Local cities and counties cannot require local massage permits
of CAMTC certificate holders, but they can require permits
dealing with reasonable health and safety issues. They will also
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generally require a business license of the business owner,
independent contractor, or tenant.
Support . The California Massage Therapy Council writes, "CAMTC
has worked with representatives of the California Police Chiefs
Association, the League of California Cities, the California
State Association of Counties, and city attorneys throughout the
state in preparing the proposed amendments to the massage
therapy law. The massage provisions in this bill will make the
statewide massage certification program more effective in its
mission to protect the public."
Opposition . The American Civil Liberties Union writes, "We are
concerned that people with a massage therapist certificate may
have those certificates suspended (1) even before the individual
has been arrested for the crime (much less convicted of that
crimes), (2) this suspension may take place for any felony which
would include crimes that are not directly related to the
qualifications to practice their professions (i.e. drug
possession), and (3) people should be entitled to expedited
hearings when their certificates as a massage therapist been
suspended.
"In addition, we are also concerned that a conviction of an
infraction or municipal code violation should not be sufficient
to deny an individual a certificate or give cause for
disciplinary action because infractions are considered so
minimal that defendants are not given legal representation. An
individual should not be in the place of losing his or her
certificate or not being refused a certificate based on these
minor offenses.
"While we understand that this certificate is similar to 'good
housekeeping seal of approval' (rather than actual licensure to
practice), we believe that the state-imposed standards that
directly affect an individual's ability to practice their
profession must meet the fundamental due process and 'directly
related to an individual's fitness' to practice their
professions standards."
Previous Legislation . SB 538 (Price) of 2011extends the sunset
date of the BRN and makes a number of changes to the BRN's
authority and operations, and to the NP Act, including
provisions substantially similar to the provisions of this bill.
This bill was vetoed for reasons unrelated to these provisions.
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AB 619 (Halderman) Chapter 162, Statutes of 2011, changes the
name of the MTO to the CAMTC and makes a number of clarifying,
conforming and technical changes to the Massage Therapy Act.
SB 731 (Oropeza) Chapter 384, Statutes of 2008, creates the MTO
and provides for the voluntary certification of massage
therapists and massage practitioners by the MTO.
REGISTERED SUPPORT / OPPOSITION :
Support
American Massage Therapy Association
California Massage Therapy Council
Opposition
American Civil Liberties Union
Associated Bodywork and Massage Professionals
Analysis Prepared by : Angela Mapp / B.,P. & C.P. / (916)
319-3301