Questions Legislators Should Ask

Ramona Moody French
Director, Desert Resorts School of Somatherapy

The following questions are based on the pamphlet, Questions a Legislator Should Ask, 2nd ed by Benjamin Shimberg and Doug Roederer. This pamphlet is available from The Council on Licensure, Enforcement, and Regulation (CLEAR). The questions were designed to ascertain the need and potential public benefits of proposed occupational regulation. [KEG]

1. What is the problem?

Has the public been harmed because massage therapists have not been regulated by a state license?

No. There is no evidence that the public has been harmed because massage therapists do not have a state license. Injuries to the public occur in such low numbers that they are statistically almost nonexistent. In fact, the demonstrable evidence is that massage is a very safe profession.

Massage provides a beneficial service to the public at a price that has not changed much in the twenty years I have been in the profession. Massage has become a mainstream profession in the last twenty years, and is an ideal field for kinesthetic learners, for people who need flexible work schedules, for people who cannot for one reason or another obtain advanced education and who would otherwise be relegated to low-paying jobs.

Can the claims made by the proponents of regulation be documented?

No. Claims made that massage is harmful to the public are misleading and speculative, and there is no evidence those claims are true.

2.  Why should the profession of massage be regulated?

It is not necessary to create a new regulatory board for massage therapists. Massage therapists in California are required to comply with Senate Bill 577, an act that was passed to allow the public free access to unlicensed health care providers, as long as those providers comply with the requirements of SB 577. The act requires that non-licensed (that means no state license) health care providers abstain from certain specific activities, and disclosed their training, practices, and the theory of their type of work to the customer. They are required to present these disclosures in writing to the client, obtain the client’s signature on a form acknowledging receipt of the disclosures, give a copy of the signed document to the client and keep the original on file.

Who are the users of the services offered?

Customers of massage therapy are members of the general public. They may lack the necessary knowledge to evaluate the qualifications of the providers, however most people either obtain massage services at establishments where the work is supervised and there is accountability, or by referral to private practitioners. This works pretty well, as evidenced by the very low number of injuries to the public in this profession.

What is the extent of autonomy of practitioners?

 Is there a high degree of independent judgment required?

Massage therapists need to know basic contraindications to massage; that is, they need to be able to recognize conditions that could be adversely affected by massage and deny massage to customers with those conditions, referring to other practitioners as they see the need. This basic knowledge is taught in every massage school in California in entry-level programs, and the evidence that this is sufficient is, again, the fact that there are very few injuries to the public by massage therapists.

How much skill and experience are required in making these judgments?

Therapists need a basic massage education to be able to make these judgments. Most massage schools in California teach 300 hours or less in their entry level programs, and their graduates are able to go to work and provide a safe, beneficial service to the public. In fact, the backbone of the profession in California has as little as 100 hours of training in massage. Many practitioners have been able to take care of their clientele successfully for many years without any more education than that.

Do massage therapists customarily work on their own or under supervision?

Massage therapists customarily work on their own in private practice. Some share offices with other massage therapists, or with chiropractors or other health professionals, or they work in beauty salons or day spas. The fastest growing segment of the massage industry is in resorts and day spas, where massage therapists work under supervision of a spa supervisor. Spa supervisors and other massage supervisors often have no massage training at all, and are not covered by any regulatory statute. They are accountable to their customers to provide a safe, beneficial service, and carry liability insurance in case of accident or other injury. The very low cost of liability insurance for massage therapists speaks for itself.

3.   What efforts have been made to address the problems?

 Could the use of applicable laws or existing standards solve problems?

Massage therapists in California are required to comply with Senate Bill 577, an act that was passed to allow the public free access to unlicensed health care providers, as long as those providers comply with the requirements of SB 577. the act requires that non-licensed (that means no state license) health care providers abstain from certain specific activities, and disclosed their training, practices, and the theory of their type of work to the customer. They are required to present these disclosures in writing to the client, obtain the client’s signature on a form acknowledging receipt of the disclosures, give a copy of the signed document to the client and keep the original on file.

Has the profession established a code of ethics?

Every professional association for massage therapists, including the American Massage Therapy Association, The Associated Bodyworkers And Massage Professional, The International Massage Association and others, have established codes of ethics for their members.

What recourse does the public have if necessary?

Dissatisfied customers have several avenues of recourse if necessary. They can report a problem to the massage therapist’s employer, to the agency that licenses the therapist (usually the city), or to any professional association to which the therapist belongs. If the case is very serious (rare) the customer can file a civil lawsuit or file charges against the massage therapist with the police.

Could existing standards or applicable laws solve problems?

Unfair and deceptive trade practices laws could be used in the case of massage therapists who falsify information about their training and experience. Civil suits could be used against massage therapists who injure or defraud their customers. Criminal laws against prostitution could be used against massage therapists who sexually assault their customers or who include sexual acts within the context of the massage.

Although actual injury from massage is rare, responsible massage therapists carry liability insurance for instances of slip and fall or malpractice in order to protect their customers.

Massage schools in California are regulated by the state and have to meet certain standards of accountability. It would require very little additional funding to simply require a basic curriculum that all schools must teach to entry level students to insure that they are competent in at least one style of massage, no danger to the public, and able to market themselves.

The California Alliance of Massage and Bodywork Schools has done some research on what should be, and usually is, included in a basic training program that has those outcomes, and have submitted that basic curriculum outline to the BPPVE as a suggested guideline for approving schools. It would be easier to add a curriculum requirement to the regulation of massage schools than it would be to establish an entirely new regulatory board, and the outcome would protect the public just as well.

Has a non-governmental certification program been established to assist the public in identifying qualified practitioners?

Several professional associations have established voluntary certification testing for their members. Massage therapists can choose to take the appropriate test if they want the certification.

4.  Have alternatives to licensure been considered?

Could an existing agency be used to regulate the profession?

The difficulty here is that massage is a technique used by many professions, including cosmetology, physical therapy, chiropractic, acupuncture, as well as the spa and resort industry, and of course, massage therapists themselves. Many of these professions have regulatory boards, but if one of these regulatory boards is used to regulate the practice of massage, it would leave out or discriminate against all the other professions that use massage. There are many kinds of massage, also, and regulating all the different kinds with one board is going to be difficult. In fact, that is one of the reason that so many different groups are fighting to be exempted from AB 1388 - no one-size-fits-all law will work.

Would regulation of the employer rather than the individual practitioner provide the necessary public protection?

The problem here is that most of the profession is self-employed.

Could registration of practitioners coupled with minimum standards set by a state agency be used?

This could be the ideal solution. If massage therapists are required to have graduated from an approved school which complies with minimum standards set by the state, such as the minimum curriculum submitted to the BPPVE by CAMBS, then the public safety would be protected while allowing a great deal of diversity in the kinds of massage the schools teach and massage therapists practice.

Could certification of practitioners be an acceptable alternative?

This is another workable solution. The use of the title massage therapist could be restricted to those who meet certain minimum standards of education and experience, while not prohibiting anyone else from practicing massage. The current two-tier structure of AB 1388 is a move in this direction. If it could be simplified to require that anyone who uses the title massage therapist must meet certain standards of training, including a minimum of at least 200 hours of outcome-based training, and training in contraindications, health and safety, while not prohibiting the practice of massage in general, it would make more sense than the more complicated structure currently described in AB 1388.

Would licensing be more effective than any of the above measures?

State licensing would be costly, complicated to establish, would require the creation of a new regulatory board or add to the burdens of current boards. It would be difficult to create a law that recognizes the incredible diversity of massage practices in California. Establishing a requirement for training based on arbitrary round numbers of hours would restrict entry to the profession and make it more difficult for poor people to enter the profession, and would make the service less accessible to the public as a result. Establishing a requirement for some form of national certification test would discriminate against many in the profession who are learning disabled or kinesthetic learners who make very good massage therapists but couldn't pass a scholastic test. Written tests don’t measure actual ability to perform massage; they only measure scholastic ability.

5.   What could be done on a local level to meet the needs of massage therapists and the cities and counties in which they work?

 For massage therapists, the problem is that licensing varies widely from city to city and if the therapist needs licenses in multiple cities, the therapist must go through the same procedure repeatedly, including fingerprints, background search, health exam, and the like, in each city. However, cities have differing needs, and each city creates massage licensing that reflects the conditions in that city. Also, other professions must also obtain business licenses in every city in which they conduct business. This is simply a cost of doing business. A few cities have very restrictive licensing requirements, but therapists in those cities can either work with the city to change licensing requirements so they meet both the needs of the city and the therapists, or work in nearby cities where licensing requirements are more lenient.

Cities need to know who is doing massage in their communities, and they want to prevent illegal acts such as prostitution, which sometimes has used massage as a front.