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26 November 2006
Ethics and Professional Associations
The health care literature contains a substantial number of papers on individual ethics. There are also an increasing number of papers on the ethical provision of care by Health Maintenance Organizations (HMOs). A paper by Pellegrino and Belman1 , published in the Journal of the American Medical Association (JAMA) in 1999, noted a dearth of papers on the ethics of professional societies and professional associations. That dearth has not changed significantly since then, the Pellegrino and Belman paper is one of the few to address this issue straight on. Fortunately, Pellegrino and Belman did an excellent job of this. In the following quote, they define both the problem of conflict between ethics and self-interest and the goal that associations should pursue of acting consistent with health care ethics.
Medicine is, in essence, a moral enterprise, and its professional associations should therefore be built on ethically sound foundations. At the very least, when physicians form associations, such associations should promote the interests of those they serve. This, sadly, has not always been the case, when economic, commercial, and political agendas so often take precedence over ethical obligations. The history of professional medical associations reflects a constant tension between selfinterest and ethical ideals that has never been resolved. … Today, the dominant influence on professional associations is economic, and the tension between selfinterest and ethical principles is greater than ever. This conflict is eroding the moral foundations of all professional associations, not only in medicine, but in law, education, and even the ministry. … The mission of professional medical associations ought to be consistent with that of the medical profession itself and should include all those public and professional goals mentioned above.
While Pellegrino and Belman defined an excellent framework of discussion, they largely confined their discussion to overall goals and policies of associations relative to ethics and conflicts of interest. In particular, they did not delve into the problematic nature of a health care association board providing ab initio (i.e. from the beginning or original) health care opinions to a legislature.
As a lay scholar, I cannot provide an ab initio opinion in either medicine or law, since I am not licensed to practice those professions. What I can do is reference existing opinions, by those qualified to make them, along with other relevant statistics and data. What opinions I can give are those than can be drawn by a reasonable and prudent person given the preponderance of the evidence. Such conclusions have a firm basis in standards of evidence in civil law. That I must give opinions on this basis is clear and unambiguous, because I cannot do otherwise.
Such clarity is absent when the board of a professional association offers a healthcare-based assessment to a legislature. A board might draw solely on external evidence, offering an association opinion on a lay basis. When a board offers an independent opinion, they enter a murky and problematic ethical areas.
Many states, including California, subscribe to the Corporate Practice of Medicine Doctrine. Historically, this doctrine has substantially limited the extent to which physicians could practice medicine as employees of corporations, the intent being to insure that medical practice and opinions were not unduly subject to external influences. More pertinent to the present consideration is the stricture that "Corporations and other artificial entities shall have no professional rights, privileges, or powers". This restraint is not unique to physicians in California, being extended to other professions having some allowance to diagnose, such as doctors of chiropractic and naturopathic doctors.
The upshot of the Corporate Practice of Medicine Doctrine is that a professional association cannot, as a legal entity, offer a healthcare opinion. Corporations, including associations, cannot be licensed; they have no professional rights, privileges, or powers. Thus, when the board of such an association writes a statement containing an independent healthcare opinion, they must do so on the basis of their separate and individual licenses to practice. Any such statement must therefore fall within the ethical guidelines for individual practice, as the statement has no other credible basis. Such healthcare opinions should be treated as distinct from a purely preferential/political opinion, as the latter is not based on assumed professional expertise.
An association board could, at least in theory, clearly and explicitly state that they are giving a lay opinion. In that case, no special credence should be given to the opinion beyond the external evidence provided. To a large extent, this would be the preferable method for an association board, since it avoids creating an independent healthcare opinion that may be suspect on creation from conflict of interest. If an independent opinion is given, then it is fair to question whether it is being given consistent with ethical practice and to the best of the board members' knowledge and abilities as licensed practitioners. In short, have the board members succumbed to the external temptations of self-interest noted by Pellegrino and Belman or are they pursuing a public benefit or protection that is apparent and not speculative or remote?
All of the above provides the ethical framework within which I wrote the article Show me the Evidence, criticizing the California Chiropractic Association (CCA) board for making statements regarding likelihood of harm from passive movements done my massage practitioners. The statements are as quoted in that article and as occurring in a document sent by the CCA to the Assembly Appropriations Committee. Compare the CCA statements with the best external opinions and peer-reviewed assessments that I have found after considerable monitoring. I will leave it to the reader to make their own evidence-based determination of the ethics and validity of the CCA claims. The underlying ethical issues, of course, extend beyond the example of the CCA to any professional organization giving practice related opinions to external agencies.
I'll close noting that Pellegrino and Belman also provided comments on the public effects of associations acting from self-interest rather than from public benefit.
Some associations have come to resemble guilds or mutual benefit societies. Clearly, the public has perceived this trend and no longer trusts those associations to act on its behalf. … Today, when virtually all aspects of society are commercialized, there is an increasing deprofessionalization of all professions. The public yearns for professionals and professional associations devoted to something beyond selfinterest. In no endeavor, except possibly the ministry and education, is this need more urgently felt by the American public than in medicine. That is why any scandal or perceived defect of virtue so seriously undermines public confidence in the integrity of the entire profession and its official organizations.
1Pellegrino, Edmund D. and Arnold S. Belman, 1999: Professional Medical Associations: Ethical and Practical Guidelines, JAMA, 282 (10), 984-986, DOI: 10.1001/jama.282.10.984.
25 November 2006
Medicine and Appropriate Attire
It seems that massage therapy is not the only health care venue in which choosing appropriately professional attire can be an issue. According to a NY Times article, When Young Doctors Strut Too Much of Their Stuff, it's also become an issue in medicine. A while back, there had been an email list discussion about people showing up for massage job interviews not looking as if they thought it was about business. That led to my column, Meaning Business. In that I noted that our appearance is one of our strongest ads.
Once you are consistent about pursuing a massage career, whether full-time or part-time, the next step is your first ad layout. This isn't about brochures and business cards; those come later. This is about the ad you are going to take with you on every interview, presentation or client contact; the one that will walk in on your own legs and that you will see in the mirror before and after. Likely the most important ad you will ever create is the presentation of yourself. It may be a maxim but it is still correct, "You never get a second chance to make a first impression."
Politics and Pharmaceuticals
Another NY Times article, Drug Industry Is on Defensive as Power Shifts, notes that the drug industry is scrambling to ramp up lobbying of Democrats. Their big fear is of a law change resulting in the government negotiating lower drug prices. The article comments that the “2003 Medicare law prohibits the federal government from negotiating drug prices or establishing a list of preferred drugs”. In a move contrary to public interests, the companies want to keep things that way — maintaining a major contributor to rising health care costs.
Another Round with the CCA
There's been another round of exchanges between ABMP and the chiropractic community. Earlier this month, ABMP sent out a later to all the licensed DCs in California. They also provided a link to a short survey designed to better gage the attitudes of practicing DCs as opposed to those of the California Chiropractic Association. Apparently, of about 10,000 licensed DCs, only something like 2000 are CCA members. The latest twaddle from the CCA back to their members continues to provide misinformation.
Instead of accepting our language, ABMP insisted on trying to pass a bill that would allow massage therapists with only 250 hours of training see patients directly and move joints into the passive range of motion.
The CCA still has trouble with their physiology. There are active movements and passive movements. In doing a passive motion, the apparent range of movement is the passive range of movement. In doing a passive movement, you can't discern when you exceed the position that the client could actively move to because that's a neurological function. The active range of motion depends on the ability of the client to induce further agonist muscle contraction and is most often not based on any kind of end-feel or resistance. Yet, the CCA insisted on language to limit passive movements by massage practitioners to the active range of motion.
Basing a scope of practice limitation on a barrier that isn't evident during performance of a technique is both poor physiology and poor law. What the CCA is trying to do is to take passive stretching of soft tissue out of the scope of practice of massage therapy. There's good reason why both ABMP and AMTA declined to accept the CCA language.
The CCA stance is simply an example of protectionist lobbying; an effort to restrict consumer choice and increase health care costs without evidence of public benefit. The Council for Licensure, Enforcement, and Regulation (CLEAR), has a resource brief by Richard Morrison noting the influence of associations against the public interest. An FTC Economics report by Cox & Foster similarly describes the negative effects that unnecessary regulatory limitations have on consumer choice and costs. With a new legislative session starting in January, the beginning of the new year will be an excellent time to write letters to the editor to bring some public awareness to such anti-public efforts as those being pursued by the CCA. If we, as consumers, want effective health care, it's time to force a stop to this turf-war nonsense.
04 November 2006
Fear No Comments by the CCA
First some small cleanups. I noticed last night that the link to my response to the CCA on ROM in my Nov 1st post was wrong. I corrected that in the post. I also added a link to the CCA letter to the Assembly Appropriations Committee, and added links to the Ernst (2003) and Grant (2003) medical literature reviews on massage safety.
I find it interesting that neither AMTA nor ABMP seems to have jumped on the opportunity to urge members to support proposition 89 — likely one of the best opportunities for a while at reducing California Chiropractic Association (CCA) influence against massage.
I also find the CCA's response to the ABMP letter to be ironic, in view of Proposition 89 and it's predecessor in the legislature. The CCA wrote to their members:
I suspect that lawmakers will not take too kindly ABMP’s suggestion that their votes are for sale when we share with them ABMP’s Web site posting and e-mail to its members alleging “Very simply, the California Chiropractic Association (CCA) fought the bill and called in its chits, bought with $400,000 a year political contributions to state legislators.
Ironically, the support of the League of Women Voter's, Common Cause, AARP, the Daily KOS and the Foundation for Taxpayers and Consumer's Rights for Proposition 89 suggests that they are quite willing to broach this subject of money influence without quailing at the possibility of offending the legislature. In fact, an unsuccessful bill to address money influence was introduced by Assemblywoman Loni Hancock and passed the assembly. I don't think one can be much more explicit than the headline, Proposition 89: Take the “For Sale” sign off the State Capitol.
Anyway, it provides yet another comparison between what the CCA is saying and what's actually happening in the political world. ABMP stands in good company on this one, including some in the legislature itself. Support for 89 would also note to the legislature that the massage profession takes a pragmatic view of politics extending beyond massage bills. It's a way of stating that "we have members" and members vote. Perhaps, also, massage practitioners can find a needed ally in the California Nurses Association. We could do worse.
Email your friends and get them out to vote on this and other issues pertinent to addressing the problems of the world. Don't kid yourself that you can't make a difference or that the choices are unimportant.
01 November 2006
The CCA is Still Way Off Base
I received my copy of Massage Magazine today, with their take on the California Chiropractic Association (CCA) involvement in the demise of SB 412. Looking at the CCA website, where Massage Magazine noted the self-congratulatory posting on the demise of SB 412, it seems that the CCA has taken offense to a letter that the Associated Bodyworkers and Massage Professionals (ABMP) sent out to members.
The CCA complains that ABMP talks about their "buying votes". ABMP concerns are far from unique, given Proposition 89 on next Tuesday's ballot. Checking today, the Secretary of State web pages show $274,612.08 reported for CCA payments to lobbyists during the first six quarters of the 2005-2006 legislative session. Currently reported campaign finance contributions made by the CCA totaled $228,003.48 today. One of the Proposition 89 support videos asks if we expect that organizations make such donations and expect only a box of donuts in return. Certainly the League of Women Voters and Common Cause don't think so.
As to the specifics of their opposition, the CCA claims that it is based on medical hazard, that the proposed wording was beyond usual wording for massage scope of practice, and that no credible response to the CCA objections was made. The CCA is off base on all the above.
As I noted in a previous Massage Today column, the CCA has not shown any evidence base for harm, despite the fact that massage therapists have been doing passive stretches for many years. Where's the evidence?
The restriction on manipulation that was contained in the final amendment of SB 412 is very standard. The exact restriction was that
Massage specifically does not include moving a joint beyond an individual's normal physiological range of motion, or using a fast, low amplitude thrust.
I'll let you decide from the response that was prepared, whether such language is reasonable and usual and whether or not the response itself is "credible". One of the ABMP lobbyists also worked directly with me to prepare a half-length "summary" for legislator/staff reading. It contained the same points with less redundancy of support. While you're looking, check out the comparitive rates and amounts of malpractice claims for massage relative to chiropractice reported by Studdert et al. (1998) in a paper in JAMA. Then look at the medical literature reviews by Ernst (2003) and Grant (2003). Also, once again, take a look at the paper in JAMA by Pellegrino on association medical ethics (or the lack of them). After that, read the medical-opinions sent to the Assembly Appropriations Committee by the CCA, months after the above response was written. Form your own opinions on where the credibility lies.
California Chiropractic Association (CCA) assertions that passive movement is not intrinsic to massage are contradictory to statements by leading massage educators from around the country. Thai massage, for example, is particularly founded on local pressure and passive movment. The description of Esalen massage on Wikipedia notes that it includes "passive joint movements" and "has incorporated elements of movement and stretching therapy". These statements are consistent with my own numerous experiences of workshops at Esalen, including one this last October.
In addition to the British Columbia and Ontario reserved/controlled acts lists, the precedence for occupational regulation being based on evidence of harm that is significant, apparent and not remote is well-established in many states. That precedence is already embodied in SB 577, the California Health Freedom act, enacted several years ago. The language in SB 412 would neither have extended existing practices nor set new legal precedence. Such language is well-summarized by a Washington State statutes stating that regulation is warranted when:
Unregulated practice can clearly harm or endanger the health, safety, or welfare of the public, and the potential for the harm is easily recognizable and not remote or dependent upon tenuous argument
or by Vermont statutes:
It can be demonstrated that the unregulated practice of the profession or occupation can clearly harm or endanger the health, safety, or welfare of the public, and the potential for the harm is recognizable and not remote or speculative
Despite millions of massages being done, the CCA has simply not shown evidence that there is harm from current practices of passive movement that is actual and not speculative or tenuous. It is 'interesting' that, despite the pronounced medical concern regarding passive movements expressed by the CCA, that no journal articles are evident in the literature. A short letter, such as that of Tsuboi and Tsuboi (2001), on an observation of a cervical arterial embolism subsequent to Shiatsu, goes much further than blanket scope of practice objection in defining potentially endangered populations and refining referral and treatment protocols.
You may express dismay (as urged by the ABMP) to whatever chiropractors you know as you like. You can use or not use what services you like. You can express dismay in letters to the editor of your local newspaper. You may also choose to vote for Proposition 89 next Tuesday.
You can, by the way, also consider if your other votes are leading to a more embodied world with empathy and compassion. There is a story by Terry Dobson that captures the essence of balance in self-defense.
31 October 2006
A Slightly Less Scary Halloween in PA
I received an email last night from Pennsylvania pointing to an AMTA-PA announcement that HB 1643 is going to die in the House Professional Licensure Committee. This was another case in which Physical Therapy and Chiropractic associations have been trying to restrict the practice of massage by placing "poison pill" wording into legislation. It's a compliment to the professional groups in both PA and CA that they didn't accept such wording in an unwise push to gain state regulation. We don't deserve more "Halloween nightmare" precedents like like the New Jersey law, which prohibits claims of treatment.
Professional Society Ghouls and Vampires Do Create a Scary Halloween
I mentioned in my post on the 29th that chiropractors and physical therapists are in the middle of a turf battle, with massage practitioners and athletic trainers as secondary targets. As it turns out, PA is one of the battlegrounds, where physical therapists are going after chiropractors for advertising that they provide "physical therapy". A perspective from the PT side challenges the chiropractic assertion that "manipulation is ours". They refer to a document from the Institute for Alternative Futures on The Future of Chiropractic noting Physical Therapy as a major competitor. Among the PT comments on turf battles, there's a note that chiropractors are increasingly using both the introduction of legislation and the courts to face-off with physical therapy.
A striking example of the chiropractic use of courts, was the decision by the Arkansas Supreme Court, upholding a case against a physical therapist brought by the AR chiropractic board —this was in spite of an opinion by the AR physical therapy board that the PT was practicing within their allowed scope.
The implication for massage is that those challenging our practice may not remain content just to sabotage explicit massage legislation, but could easily try to introduce legislation that would make some area of our customary practice off-limits. That's the background for my urging California Massage Therapists to support Proposition 89 to limit the influence of association money. A recent University of Maryland thesis by Adam Howard Hoffman looked at the effects of campaign contributions on state legislators. The loss of organizational history and expertise stemming from term limits has only amplified this influence.
The loser from these turf battles is not just massage therapy and its practitioners, but the health consumer. Turf battles and protectionism raise costs and limit consumer choice. Both British Columbia and Ontario restructured their systems of health care regulation to minimize "ownership" of practices. The restructuring involved creation of a centralized and quite limited list of restricted acts and extensive scope of practice reviews by health professions councils. The focus shift is from regulating professions to regulating well-defined controlled (Ontario) or reserved (BC) acts. In the U.S., the Pew Health Professions Commission, noted the Ontario example (Case #4) among its recommendations for revitalizing health professions for the 21st century.
Some professional societies are showing an increasingly dubious sense of professional ethics. Particularly when professional organizations are offering up medically-oriented opinions without an evidence-base, they may be crossing the line on their own professional oaths and ethics. In an article in JAMA, Pellegrino (1999) commented that Medicine is, in essence, a moral enterprise, and its professional associations should therefore be built on ethically sound foundations. Judging from the links I've found, this essence has been lost by a number of physical therapy and chiropractic associations. The Corporate Practice of Medicine Doctrine, holds that a corporate entity cannot be licensed and thus cannot hold a medical opinion. While restrictions on the formation of health care corporations have loosened, relative to this doctrine, it is still a truth that expertise and opinions of a medical nature rest with individual practitioners. Statements from professional societies represent the knowledge and the ethics of those forming them. Some of those professionals need a deep look in the mirror at their own ethics.
Whether ye celebrate the evening by the name of Halloween, All Hallow's Eve, or the Celtic marking of the end of year with Samhain, afterward, it's time to send the ghouls and vampire of professional society turf wars back to their crypts and coffins. It is time for the consumer public to remind health care societies that the turf and grass is not theirs to own, but to use under nonexclusive public-granted privilege. It's time to restrict acts of practice, as have British Columbia and Ontario, only when there is clear evidence of significant danger, and return the rest to the domain of the commons.
29 October 2006
It's Time for a Strategic Change in California Elections
It's been said the the current system for funding elections provides the best government that money can buy. That system recently worked over the profession of massage.
The experience with SB 412 provided a couple of observations. One is that you can have your facts together and still have trouble getting heard. That was the case with keeping the 250 hour tier. The other point was the extent to which an external profession can call the shots. That was the case with the California Chiropractic Association provided death of SB 412. Just because I ended up opposing SB 412 over the phase-out of the 250 hour tier doesn't mean I like the implications of the manner of its demise. Chiropractic and Physical Therapy Associations are fighting a legislative feud and they both seem to see massage practitioners and athletic trainers as secondary targets.
Both the trouble with keeping the 250 hour tier and the demise of SB 412 can likely be attributed to the works of larger organizations with money to burn for contributions and lobbying efforts. Cliff Korn notes this in his editorial for the November issue of Massage Today. Prior to their actually killing the bill, I had already penned a column rebuking the CCA for making spurious medical pronouncements. That column, on its way to publication and the final CCA effort killing the bill passed each other in progress.
Next week, Proposition 89 is on the ballot. It would go a long way to reduce the leverage of special interest money. The proposition is supported by the Consumer Federation of California, the League of Women Voter's of California, California Common Cause, and a host of others. The video on the Common Cause web site or this one pretty much tell what happened to massage this year.
On Tuesday 7 November, you can put in a touch for massage by voting YES! for Proposition 89. It might let us get a future word in edgewise.
08 October 2006
October Miscellany
Since the end of the California legislative session I've been mostly playing catchup on different fronts. A large part of the demise of SB 412 is now being credited to a turf play by the California Chiropractic Association. Several sources have noted that they used multiple lobbyists in the final week to kill the bill. CCA lobbying and contribution expenses run in the hundreds of thousands of dollars. I've some other comments on the CCA in a column called Show Me the Evidence. It's going to take public demand to move health care back to a public service focus and away from this turf protection — such battles were major motivations for both Ontario and British Columbia reorganizing their health care systems in the 1990's.
My own recent focus has been on bringing up a rebirth of the Annotated Bibliography for Massage Practitioners.
01 September 2006
SB 412 Fails in the Assembly
As reported on the CAMBS Website, the 2005-2006 California legislative session ended last night with SB 412 failing to get the 41 votes needed to pass.
The end of a legislative session is an interesting time. Around 8pm last night, Assembly Speaker Fabian Núñez was commemorating the service of the around 35 members being termed out, moving to the Senate, or failing reelection. The S.F. Chronicle ran a column on the sudden changes in bill content and subject that can occur as the legislature addresses last minute issues. The L.A. Times ran a column on the “muscle, grease, and juice” exercised in pressing action on bills.
Fear your Bank
There's been discussion on several massage email lists about bogus check scams (aka variants of the Nigerian scam). In my more general blog, RamblemuseSM Touchpoints, I've noted that one may have as much to fear from one's bank as from the scams and scammers. As reported in the S.F. Chronicle, this certainly was true for one Bank of America customer.
17 June 2006
Stopping SB 412 — Stopping Credentialism
Working together with CAMBS, we've cobbled together a number of resources for those believing that massage training should be about skills and student needs rather than blind credentialism. There are a couple of templates for letters to the CA Assembly from individuals and school owners in the latest CAMBS posting. I've put together a contact information directory to the CA Assembly Committee on Appropriations and a similar directory for the entire Assembly. You can determine your Assembly District and representative by using the 9-digit zip-code search provided by Project Vote Smart. As another letter example, here's one a fired off the other day to the editor of the San Francisco Chronicle:
Editor — California is a large and uniquely diverse state. It has been a pioneer in providing massage services as personal care and nurturing and, increasingly, as complementary health care. Over 200 private massage schools form the infrastructure behind the massage profession in California. This infrastructure now stands to be “phased out” by SB 412, currently in the Assembly Committee on Appropriations. The majority of massage schools are small, individual or partnership businesses. Compared to the increasing numbers of career colleges, the smaller schools have found their economic and educational niche in providing modular, pay-as-you-go education. Such education provides earlier entry to practice and experience combined with opportunities for “as needed” post entry training. It is an excellent match for the needs of Californians seeking effective ways of making career transitions or additions, not wishing or able to incur substantial student debt, and limited in either time or funds by other family and community commitments. While undermining the uniquely Californian massage training infrastructure, SB 412 contains no mandates addressing specific issues of safety or competence. Please write or email your State Assembly representative urging them to oppose SB 412. Details and legislative contact information are at http://www.camassageschools.org/. The issue is opportunity.
Senator Figueroa and Bill Gage, Figueroa's lead staff person regarding SB 412, have apparently fallen victim to the twin allures of credentialsim and academic gentrification. Both are tendencies aimed toward limiting economic and social diversity. These are distinct from true professionalism, which embraces the facets of altruism and quality service, even when such efforts exceed requirements. On the wider context of SB 412's deprecation of the 250 hour entry tier as an exercise in credentialism, I came across an interview of economist Arnold Kling on Catallarchy. Kling is the author of the new book Crisis of Abundance: Rethinking how we pay for Health Care. Within the interview, Kling says:
What’s not in my book is my rant about regulation of health care providers, with its heavy credentialism and rent-seeking. My latest pet peeve is physical therapy, which I suspect could be taught reasonably well in a one- year trade school course to high school graduates, and which recently instead had its requirement raised to three years of post- graduate training!
SB 412 is starting on that slippery slope, emphasizing credentials that require hours without specific content, outcomes, and public benefit. Given the last amendment, it's time to kill the bill and shift the focus back to effectiveness of practice and effectiveness of running a small business.
10 June 2006
Keeping Smaller Schools viable means Stopping SB 412
A lot of work by a number of people has gone into trying for a viable consensus on uniform massage regulation. One of the major facets of the result was a permanent 250 hour entry tier. With career colleges increasing claiming the 600-hour+ single-program market (600 hours is the minimum for federal financial aid), the long-term economic viability of the majority of stand-along schools rests on having a separate service niche. The 250 hour tier allowed a modular, pay-as-you-go approach to providing training with minimum costs and early entry to practice. Every attempt was made to work with Senator Figueroa and her staff on keeping a permanent 250 hour tier, but the final wording ignored our concerns. The just amended language for SB 412 phases out the tier. I'm thus recommending a switch to all out opposition to the bill. This is an unfortunate result. There was no need relative to massage safety or to gain specific outcomes of training involved. The phase-out is arbitrary but the costs are real.
You can help by writing letters opposing SB 412 to the Assembly Committee on Appropriations and to your own assembly person. This page includes contact resource for the committee members. You can find out who your representatives are at Project Vote Smart, using their 9-digit zip-code search. A copy to the Governor's office would also be helpful, as would letters to newspapers. California has long benefited from a diversity of approaches and from the teaching efforts of those considering massage to be a life practice. I believe that it's important to continue this tradition. I'll keep you posted. Thanks in advance for your letters and help. Also take a look at the writeup on the CAMBS (California Alliance of Massage & Bodywork Schools) website.
28 May 2006
Over the last couple of days, I've changed my hosting company from Earthlink to Bluehost. I think I have the entire site moved and that all scripts are functioning, but please ping me if you find otherwise. I'd ended up on Earthlink via a series of small host acquisitions by larger hosts. They've been reliable, but they haven't kept up with technology and software and they don't provide much in the way of control panels and knowledge bases. Bluehost scored high on my overview of accessible information and not letting glitz obscure usability. The smoothness of my transition seems to confirm this choice.
The change was immediately motivated by things I wanted to do. One is to get back to working on MMAP, pull-in collaborators, and set up a Wiki to coordinate the thoughts in progress. Another was to set up a second, more general blog. I've reached the latter goal first with the addition of Ramblemuse Touch Points as the less specialized sibling of the Massage Politics Sheet.
21 May 2006
Using the Unconscious Mind
Back in January, under the heading of Synergies, I'd noted that the human mind is an amazing pattern matching instrument, doing it all beneath our level of conscious awareness and control.
Professor Guy Claxton (Learning Sciences, University of Bristol), has a number of books out on learning and the unconscious mind, including, “Hare Brain, Tortoise Mind”, “Wise Up: the Challenge of Life-Long Learning”, and “The Wayward Mind: An Intimate History of the Unconscious”.
Perhaps such books can help get us back on the track of understanding that massage is largely based on unconscious physical skills and awareness with conscious reasoning as an additional tool. My thanks to Dave MacDougall of NY for the tip on Claxton.
How Cities, Counties & States can get their Name on a Court Decision
A number of cities, counties, and states that license massage practitioners, have taken to requiring membership in a professional organization and/or to maintaining a private certification as a prerequisite to licensing. With the increasing numbers and changing demographics of those coming into the massage profession, having such requirements is likely to become an excellent way to get embroiled in a 1st amendment court case. Here's my informed lay perspective.
There are 1st amendment limitations on requiring a person to be a member of a private association. The one major exception, motivated by the substantial public peace effects of the time, was closed union shops. Courts have held other exceptions in the areas of gender and race discrimination. Even in the case of unions, however, the courts have decided that there is a limitation on use of funds from those who object to an organizations expressive speech. Such a monetary use ruling was also applied to the California bar association, noting that this was a private organization and the issue was parallel to expression by unions. The association proposed for California's SB 412 might fall under the category of a state-sanctioned organization, like the bar, but the limitations on expressive speech from funds would apply.
Although he is arguing against the labor union exception, a testimony by Charles Baird has succinctly summarized the general line of court reasoning.
Correctly understood freedom of association in private affairs has two parts: First, any person has a fundamental right to associate with any willing other person or persons for any purpose that does not trespass against the fundamental rights of third parties. This is often called the positive right of freedom of association. Second, any person has a fundamental right to refrain from association with any other person or persons no matter how fervently these others may desire such association. This is often called the negative right of freedom of association. Logically, without a negative freedom of association, the positive freedom of association is meaningless. If A cannot refuse to associate with B, A does not have the (positive) freedom to choose with whom to associate. Freedom of association is irreconcilable with coerced association.
In Supreme Court Petition 2004-0446 we find, “The First Amendment protects the right to refrain from speaking and the right to refrain from association. See, e.g., Wooley, 430 U.S. at 714, 97 S. Ct. 1428. Moreover, the government may not compel individuals to fund speech or expressive associations with which they disagree. See United Foods, 533 U.S. at 411, 121 S. Ct. 2334.”
Other cited decisions have included, Abood v. Detroit Board of Education (431 U.S. 209) and Keller v. State Bar of California, (496 U.S. 1). In Abood V. Detroit BOE, the court held that:
We do not hold that a union cannot constitutionally spend funds for the expression of political views, on behalf of political candidates, or toward the advancement of other ideological causes not germane to its duties as collective-bargaining representative. Rather, the Constitution requires only that [431 U.S. 209, 236] such expenditures be financed from charges, dues, or assessments paid by employees who do not object to advancing those ideas and who are not coerced into doing so against their will by the threat of loss of governmental employment.
In Keller v. State Bar of California, the court held that,
The State Bar's use of petitioners' compulsory dues to finance political and ideological activities with which petitioners disagree violates their First Amendment right of free speech when such expenditures are not necessarily or reasonably incurred for the purpose of regulating the legal profession or improving the quality of legal services.
Finally, in Cochran v. National Dairy Promotion Board, the U.S. 3rd district Court of Appeals upheld the plaintiffs' right not to pay into the “Got Milk?” campaign.
There is a clear recognition that funds may be used for an accepted, mandated purpose, but diversion of funds so collected to express organizational agendas is subject to individual approval. Nominally, a state can require passage of a certification exam without requiring certification. Most do this, making the question of freedom of association moot. Conceivably, however, the limitations involving unwilling expression could affect a state's ability to require use of the NCE, even apart from certification, to the extent that NCBTMB has clearly become not just a provider of exams but an advocate for its perspectives and to the extent that it doesn't separate funds collected in mandating states.
19 May 2006
California Legislation Updates
I received an email update from AMTA-CA this morning. The full letter+ is online. There are also recent updates from CAMBS the (California Alliance of Massage & Bodywork Schools) . The information involves both SB 412 (massage certification) and SB 1473. The latter is extensive legislation reorganizing the state bureau regulating private postsecondary schools.
Feedback on Massage as an Objective Profession
From my viewpoint, AMTA and NCBTMB efforts over the past 15+ years have been oriented toward changing massage from a practice defined by convention and personal conveyance (much like martial arts) into a profession defined by law — a de jure definition rather than a de facto one. This has been done, despite considerable protests from those who wished to remain with massage as a practice of convention. The question that now arises is whether the objective definition that has been pushed into place is adequate and sufficient to enable practice.
The distance education donnybrook is important feedback. What, I believe Ralph Stephen's article to be is a cry of "unfair —you're trying to teach by what we've defined rather than by what we intended". This is good feedback, if taken in the proper light, that the definition created is substantially inadequate; it leaves a lot of areas out that convention would have taught. So, modify the definition, already, don't blame those following it for its lacks.
This is part of the pain of the transition of massage, at least at the accredited school level, of moving to be another objectively defined profession taught by a multitude of schools, including career and community colleges. It was an anticipatable result, but apparently it was not anticipated by all. Sometimes you get what you ask for, rather than what you pictured in your head.
I don't think we are going to go back, but have to move forward. It's time to accept the feedback, roll up our sleeves, and develop a framework (or more likely multiple frameworks/subpractices) that are comprehensive. Definitions that include the interpersonal support, communication, and somatic/sensory awareness aspects of massage practice. Since we are now an objective profession, we have to value on paper what we profess to value in our hearts.
16 May 2006
A Quick Distance Education Example
Several years ago, I got into a long discussion with Donald Schiff (Albuquerque, NM) on the details of glycolisis and lactate production. That resulted in the article Lactating Mythers. One of the places I'd used for information was Jon Maber's Design it Yourself (DIY) Glycolisis page. Rather than just giving you a sequence of reactions to memorize, DIY Glycolisis gives you Glycogen as a starting point and Lactate as a goal. You have to interactively figure out the correct reaction for each sequential step. When you try a reaction, you're told what the reaction did and what you need it to do. Short of doing it all in a chemistry lab, this example of distance education is the next best thing to being there.
Even though this is a relatively simple example of interactive learning, it does exemplify the quality of interactivity that distance learning can bring to didactic material. Interactivity makes learning a lot more stimulating than passive sitting. There was an article in the July 2005 issue of Discover on Your Brain on Video Games, partly derived from James Gee's book What Video Games Have to Teach Us About Learning and Literacy. Gee is a professor of learning sciences at the University of Wisconsin. Gee's book dovetails into the context of Digital Natives, Digital Immigrants presented by Marc Prensky. Also see Prensky's article on Do they Really Think Differently?
My wife pointed out to me today's Zits cartoon strip. Jeremy takes a phone message for his dad, writing it on his hand. He then scans his hand and prints it to post the message for his dad. It's a digital native way of thinking.
14 May 2006
Distance Education Donnybrook
There is something that is irresistible about a good regulatory donnybrook, which is certainly what the current ruckus about distance education and massage training is rapidly becoming. On the one hand, we have the NCBTMB stipulation in their eligibility determinants requiring that all education be in-class and supervised. As noted in the give link, this doesn't make much sense given that the NCBTMB has been instrumental in turning massage education into a mostly didactic sport. The requirements for kinesthetic skills and somatic awareness (see my upcoming June Massage Today column) are left to our own imaginations.
Next we have Ralph Stephens pounding on career colleges in his current column Put Your Hands on Your Monitor – Part 1. I've noted in my upcoming column that I think this is an important article, but here I'll expand that it's not necessarily how Ralph intended. Ralph and I share a viewpoint that massage education is slipping in its translation into capabilities of actual practice. Unlike Ralph, I don't think the blame should be laid upon career colleges and distance education. Partly, I believe, what we are observing is the self-inflicted, unintended collateral damage of the policies that AMTA National and the NCBTMB have pursued for the past decade and a half. In pushing for a higher didactic content in massage training, they blew their systems theory. A complex system responds to its current state and all of its inputs. What was forgotten was that a system will also adjust when kinesthetic skills and somatic awareness are de-emphasized and not explicitly valued. Go back and take another look at the NCBTMB eligibility determinants.
I also agree with Ralph, at least in a sense, that those without a particular interest in the massage profession shouldn't be trying to set the guidelines under which it is practiced. That disdain currently applies to Robert Johnson's and CAPPS's lobbying to phase out the 250 hour tier in SB 412 here in California — a tier that likely will become essential to the smaller private school's having a viable economic niche. These schools pretty much do care about kinesthetic skills and somatic awareness. The concepts of an economic niche are expanded on in my December 2004 column on Ecological Succession. Anyway, if Ralph was implying that you shouldn't try to eliminate your competition by regulating them out of existence, I agree. I'll keep joining with CAMBS on battling against the CAPPS effort.
Given all the above, there is not a thing wrong with using distance education where it is appropriate. Distance education has been with us for a long time and it's gotten a lot more versatile. As long as the exams are proctored, one need never physically enter a classroom to complete a purely didactic class or certificate. The internet has mainly added the diversity of media and the tools to do group projects remotely.
Now I still hold that massage is, despite the efforts of the NCBTMB and AMTA, significantly kinesthetic and interpersonal skill. I suspect that the market place also still considers this true. If career colleges are going to produce graduates that can pay off their loans (one of those niggling requirements of accreditation and access to Title IV funds), then they are going to have to produce graduates that are employable. As a form of amusing irony, we are back to the mercies of the market place to determine what makes a good massage graduate. You certainly couldn't glean it from the vague didactic stipulations of the NCBTMB.
If we want better kinesthetic and somatic awareness education, then we are going to have to beat on our professional hurdle setters to value such. If we want people who can bring didactic knowledge into actual practice, then we need to buckle down and create specific guidelines for outcomes to practice. Enough of this cargo-cult fascination with round hours of training and with sound-bytes of isolated, regurgitated facts. The problem is not a matter of how schools implement our values, but in what our explicit values have become.
(For those who still are interested in Somatic Awareness, take a look at Donald Bakal's book Minding the Body — Clinical Uses of Somatic Awareness. )
Julie Onofrio provides another take on the distance education donnybrook in the 9 May posting to her blog.
13 May 2006
Watch your Precedents — Lessons from NJ
Current New Jersey statutes define voluntary massage certification administered under the NJ Nursing Board. This session's Assembly Bill 1670 would remove the voluntary aspect, requiring certification in order to practice. One of the major kicker's in this is that the original certification passed with a major limitation to the scope of massage practice.
Massage, bodywork and somatic therapies do not include the diagnosis or treatment of illness, disease, impairment or disability.
In adopting rules implementing the statute on massage certification, the Board of Nursing was quite explicit in its declaration that no treatment means no treatment, particularly in responses 77 and 78.
N.J.S.A. 45:11-55 specifically states that “massage, bodywork and somatic therapies do not include the diagnosis or treatment of illness, disease, impairment or disability.” A certificant cannot diagnose or treat, but may still provide massage, bodywork and somatic therapy to individuals who are ill or suffer from a medical condition. The Committee is not authorized to adopt differing certification standards for certificants who work with sick and suffering clients as the commenter suggests.
The certification, as a voluntary process, never was particularly popular. Those who would ordinarily be most interested in credentialing to further credibility were those interested in using massage as part of health care treatment. Now, a transition from voluntary to mandatory certification could have a large negative impact on those with successful advanced practices.
My sense is that massage organizations did not strongly object to the original certification, viewing it as a foot in the door for regulation, despite its faults. What they missed is that even voluntary regulation sets a precedent and rules for scope of practice. There's a clear lesson here. Whether voluntary or mandatory, strongly oppose any bill that sets regulatory conditions that you can't live with.
Here in California, that's exactly why a number of us are keeping a very close eye on SB 412. If the bill limits accepted scope of practice or doesn't keep a permanent 250 hour tier, the opposition comes on with full force. A voluntary bill can easily become mandatory, either through interaction with local regulation or by later revision. That's a precedent clearly set at the expense of our NJ colleagues.
07 May 2006
Good-Bye Bloglet; Hello FeedBlitz
For those who wanted email notification of updates to the Massage Politics Sheet, I've long provided this capability via a service named Bloglet. Unfortunately, Bloglet has become increasingly unreliable (if not totally dead). Various blog publishers have tried to email the Bloglet maintainer without response. The MPS is following the migration of several other blogs from Bloglet to FeedBlitz, a similar service (without ads). FeedBlitz has a viable economic model, offering a basic service free while charging for more advanced configuration options or more frequent notification than once per day. This should insure better ongoing support. Anyway, former Bloglet subscribers to MPS email notification have been migrated to FeedBlitz notification.
If you weren't getting email notification and want to, look at the bottom of the navigation area on the left. There's also the option of picking up the RSS feed directly via and RSS aggregator. RSS stands for Really Simple Syndication.
SB 412 Update
From what I'm hearing, it's likely that SB 412 will be amended within the next week or two. It would then move quickly to the Assembly Committee on Appropriations and then, if passed out of committee to the assembly floor. The California Alliance of Massage and Bodywork Schools (CAMBS) has sent a letter to Senator Figueroa, the author of SB 412, with a copy to Judy Chu, chair of appropriations, affirming that CAMBS will very actively oppose SB 412 if it does not retain a permanent 250 hour entry tier. CAMBS considers this tier to be essential to the economic viability of many of the massage-only schools and to the economic and time needs of the students that they are serving. We don't know the final language yet, but keep your trebuchets and ballast close at hand. Once things start moving, they will move quickly.
01 May 2006
MPS Entries for October 2005 through April 2006 Archived
My MPS entries for October 2005 through April 2006 have been moved into their own archive file. There's also a link to the old index page from the archive index page on the navigation bar to your left.
If you came here via a link or search to the old index entries, there may be a date hash of the form "#yymmdd" following the "index.html" at the end of the URL in your browser's address bar. When you get to the archived file, go to that date to see the entry you were seeking. You can even copy the "#yymmdd" hash here, and paste it on the new page, then hit the enter key to go there. Here's a JavaScript based link that does all of that for you.
It is through each of our individual efforts that together we work to keep or get our profession and practices independent of unnecessary and/or onerous regulation. It is the responsibility of the state to protect the public from harm. It is the job of the profession itself, independent of the state, to develop norms of practice for particular client populations and contexts.
Liberty means responsibility. That is why most men dread it. — George Bernard Shaw, Man and Superman, "Maxims: Liberty and Equality", 1905
