COMMENTS ON AB 1388
Jerry A. Green, JD
Practice Management Consulting
Medical Decisionmaking Institute
P.O. Box 72, Graton, CA 95444
(707) 824-4344)
Email: jerry@medagree.com
November 4, 2003
The proposed licensing law purports to rescue massage therapists from the clutches of vice squads. But it also establishes massage as the governing profession for the fields of somatic practice and bodywork. You don’t have to include licensure of “bodywork” to take massage regulation out of the vices. This is a sneaky land grab by the field that was “entry level training” for all somatic practices. The first graders are attempting to control the schoolyard. Beware folks!
Definitions:
4600 suggests that massage and bodywork (by connecting the two with “or”) are not the same. But the law goes on to treat them as the same in some instances, and to assume that massage standards should govern the practice of “bodywork.” 4602(a) defines bodyworker as one who does bodywork. Nowhere is bodywork defined. 4602(c) says massage therapy AND bodywork mean the same thing, but defines that as “manual palpation and manipulation of soft tissues.” This is a common and acceptable definition of MASSAGE. 4602 then slips in that massage includes deciding whether or when bodywork is appropriate. BIG CONTROL HOOK.
Massage practitioners “palpate and manipulate.” Do they communicate? teach, suggest? ground, center? channel? Bodyworkers and somatic practitioners do. Does efflourage/petrosage require agreement about intention, client choice? No.
Massage as defined applies to soft tissues. What about working with breathing, balance, integrated movement? limbs? pelvis? spine? feet? hands? alignment? Consciousness? Intention? Self/body-awareness?
This is a “scope of practice statute.” Scope of practice is the turf boundary for your professional identity. All licensing laws define scope of practice. But not all professional identities are licensed, and they need not be to be legal. But they cannot legally invade licensed scopes of practice, of which there are many. Thus, we can see that licensing is a way to get the state behind regulating professional identity. You want the professional identity of somatic bodywork defined by law as “manual palpation and manipulation of soft tissues?” And then regulated as massage? Do you want these standards to govern your practices, and to define the curriculum of the schools that teach your work? That’s what this law does.
You don’t have to include licensure of “bodywork” to take massage regulation out of the vices.
Public Protection:
This law (4604) is not just “Title Licensure,” which would be sufficient to take massage regulation out of the vices. It makes doing massage without a license illegal.
4602.10(j) says the Board’s highest priority is protection of the public. If this becomes law, somatic bodywork gets gobbled up by massage like Flexnor (1910) enabled medicine to gobble up the vestiges of homeopathy (Coulter: The Divided Legacy) and later decimate Osteopathy and vision training ( Bates.) This is long range academic and funding control, and it’s exactly how the Flexnor report engineered homeopathy out of medical schools and the practice of medicine, by setting education and training priorities, defining ethical standards of practice.
N.B. The Board must represent the diversity of “massage therapy practice.” Bodywork’s not even mentioned here, perhaps an oversight, but quite revealing of the land grab intention behind the design of this law.
You don’t have to include licensure of “bodywork” to take massage regulation out of the vices.
Exemptions:
Simply put, they are piecemeal, make no sense legally, and are subject to proven constitutional objection.
4603.1 Exempts hands feet & ears from soft tissue palpation and manipulation without regard for the potential of reflexologists to channel energy, ground, center or balance awareness or reverse patterns of accumulating tension.
Then (b) exempts Trager, Alexander, Body-Mind Centering (who are they?) without mentioning Feldenkrais, or dozens of others who didn’t raise their hands to be recognized without saying what they are or what they have in common with (a) that warrants an exemption.
Then (c) recognizes polarity and energy therapy without saying what they are or what they have in common with (a) that warrants an exemption.
Note my statement “without saying what they are or what they have in common with (a) that warrants an exemption.” It is repeated here because the REASON for the exemption is necessary to know the legitimate legislative objective for making any statutory distinction. This is guaranteed by the due process clause of the 14th Amendment. In order to cure this defect, the statute would have to say what the exempt providers in (a)(b)(c) have in common so that one might know the criteria for applying the exemption (or not applying it) to others not mentioned or contemplated. Basic due process.
Due process guarantees are also the reason why licensed health providers, (DCs, PTs, etc.) can’t be exempted from county/city laws without also exempting other providers who are legal but not licensed. This reasoning has been positively tested. The San Bernardino County Counsel advised modification of their massage law to exempt “holistic practitioners” who also used massage within their scope of practice.
Because 1388 does not imply a meaningful purpose behind their exemptions, this provision is voidable on constitutional grounds. But more importantly, it is simply offensive to professionals and the public interest in the professional integrity of their work.
Recommendations:
You don’t have to include licensure of “bodywork” to take massage regulation out of the vices.
- Take “bodywork” out of the statute.
- Explicitly exempt holistic practitioners and/or somatic practitioners who utilize massage in the context of their scope of practice, along with other licensed care providers.
- It’s not necessary to define “holistic practitioners or somatic practitioners” explicitly, for the reason that their exemption is implied or constitutionally required anyway. These fields can (should) be left to define their own scope of practice within their own professional associations in their own time.
- If definition is considered, I offer:
- Holistic practice: Therapeutic services which enhance, stimulate, nourish or balance vital energy.
- Somatics: Therapeutic services which enhance, stimulate, nourish or balance vital energy by developing self awareness through suggestion, touch and movement.
But it would serve the public interest by clarifying that the Legislature is familiar with the field, and wants their independent professional recognition preserved. It would also encourage professional recognition by the professionals in the field, and be an impetus to raising political conscious in this sleepy and very vulnerable field.
These definitions derive from my earlier published writings and from Thomas Hanna’s writings in the first year of publication of “Somatics” (1982 cite, below)
Conclusion:
You don’t have to include licensure of “bodywork” to take massage regulation out of the vices.
Bibliography:
Contracts With Your Doctor? New Realities 1978 V.2, N.1
Allocating Responsibility by Contract. Medicolegal News 10/88, Am Soc L Med
The Health Care Contract: A Model for Sharing Responsibility. Somatics 3, (4) 1982
Minimizing Malpractice Risks by Role Clarification: The Confusing Transition from Tort to Contract. Annals of Int Med 109/3: 234-241, 8/1/88
Dentistry and the Scope of Practice Boundaries: Holistic Practice Distinguished. Int J Biosocial & Med Res 13(1) Spring 91
Medicine and the Scope of Practice Boundaries. The Townsend Letter For Doctors, Feb, 95
Integrating Conventional Medicine and Alternative Therapies. Alternative Therapies in Health and Medicine, July 96
Collaborative Physician-Patient Planning and Professional Liability: Opening the Legal Door to Unconventional Medicine. Advances in Mind-Body Medicine, March '99
Other Related Works:
Cohen, Michael H. A fixed star in health care reform: The emerging paradigm of holistic healing. Ariz. St. L.J. 27:79 (An overview of medical practices statutes in different states with analysis of regulatory policy.)
Cohen, Michael H., Complementary and Alternative Medicine: Legal Boundaries and Regulatory Perspectives (Johns Hopkins University Press. 1998)
President’s Commission for the Study of Ethical Problems in Medicine and Biomedical Research, Making health care decisions: The ethical and legal implications of informed consent in the patient-practitioner relationship. Washington DC, USGPO 1982
California Board of Medical Quality Assurance 2052, Committee Final Report (5/20/83), B. Winters, Chair.