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17 December 2007

How to Create Effective Training

The current newsletter from the Center for Effective Performance (CEP) contains a couple of articles focused on creating effective training. While the language is oriented toward sales training, the advise is far more general (not that many MTs couldn't benefit from effective sales training). The first article expands on a sequence of seven basic steps for defining and implementing training.

  1. Define desired job performance
  2. Identify performance gaps
  3. Determine the causes for performance gaps
  4. Identify tasks and skills
  5. Write performance objectives
  6. Develop skill checks to evaluate competency
  7. Plan practice opportunities and feedback to employees in training

The second article stresses the need for reflective practice — “Lots of practice and a requirement to actually demonstrate all the skills the job requires before going out and talking to customers.” The article also provides more tips on making training effective.

  • Create explicit performance expectations.
  • Articulate precise job performance requirements.
  • Articulate the standards by which performance will be measured.
  • Limit training to only what is essential for meeting those performance requirements.

Apropos of my comments in my last post on the Colorado sunrise review, CEP provides a strategy for defining competence and training for competence in terms of benefit to the public and the assurance to third parties that licensed practitioners would be proficient, within actual practice, in a core curriculum of knowledge, skills, and abilities. We could do worse.

 

15 December 2007

Reflections on the Colorado Sunrise Review

Having headlined the unfavorable Colorado sunrise review last week, I wanted to go back and look in more depth at the basis for DORA's conclusion and at the comments the Associated Bodyworkers and Massage Professionals (ABMP) made to members about the review. I think there are things we can learn from a bit of reflection. First, let's highlight the three legislatively mandated criteria on which DORA's reviews are based.

(I) Whether the unregulated practice of the occupation or profession clearly harms or endangers the health, safety, or welfare of the public, and whether the potential for the harm is easily recognizable and not remote or dependent upon tenuous argument;

(II) Whether the public needs, and can reasonably be expected to benefit from, an assurance of initial and continuing professional or occupational competence; and

(III) Whether the public can be adequately protected by other means in a more cost-effective manner.

The first criterion is a pretty explicit statement that recognizable harm must clearly be observed to be occurring in the absence of regulation. The requirement eliminates speculation about forms of harm that conceivably could occur, but for which there's no observational evidence. Implicitly, there's also a requirement that there are sufficient observations to conclude that the instances of harm form a pattern of harm related to professional practice, and are not simply random occurrences that might have occurred as easily within activities of daily life.

Integrated Safety ManagementThe second statement confines the scope of the harm to “occupational competence” and the benefit to the public from assuring such competence. For physical harm related to competence, the second DORA criteria implies that the occurrence of harm has been defined and that the knowledge and protocols provided by training are specific enough to clearly mitigate the occurrence of such harm. More specifically, from the realms of integrated safety management (ISM) depicted in the figure, that the scope of practice has been defined, that the mechanisms of observed harms have been identified, that proposed training implements controls on the mechanisms of such harm, that those trained will practice within such controls, and that the controls themselves can and are being measured and updated to ensure their effectiveness.

In contrast to the second DORA criterion,the Supreme Court ruling of Dent v. State of West Virginia, 129 U.S. 114 (1889) set out the principle that the state can limit the practice of occupations when it implements a needed public protection from harms of incompetence and malfeasance. The court decision in that landmark case on which the principle of occupational regulation by the states is based, clearly stated the basis for the state to limit the freedom to pursue practice.

The power of the state to provide for the general welfare of its people authorizes it to prescribe all such regulations as in its judgment will secure or tend to secure them against the consequences of ignorance and incapacity, as well as of deception and fraud.

What Dent v. WV contains that the second DORA criterion lacks, is a function in providing protection against fraud and mal-intent. There is thus a concept of a state providing active oversight that can be separated from requirements for provision and assessment of training for competence assurance. With the above as background, we can now turn to ABMP's comments.

The ABMP response to DORA's review effectively took DORA to task for being shortsighted and not considering the practice of massage within the overall growth in use of complementary and alternative medicine (CAM).

Although DORA was clear that the only instances of harm they were interested in was physical harm, the Department seems to take lightly the reports of physical harm recorded by the two largest massage therapy associations’ liability insurance companies. … DORA was not satisfied because it was unable to independently verify the accuracy of the report. DORA responded that “This evidence of physical injury must be tempered, however, due to the limited nature of the information provided.” We are confident however, of the accuracy of the information provided to DORA, as insurance companies do not pay claims they are not required to pay.

The report concluded that “the evidence revealed during the course of this sunrise review shows that massage therapists can cause harm, that harm would not be avoided through regulation because the harm is sexual conduct, it is not an issue of competency.” All of the instances of harm (31 cases) reported by the liability insurance companies were of physical harm, not sexual conduct (7 cases). The liability insurance carriers do not pay claims based on sexual misconduct; indeed, it is specifically named as an exclusion to massage therapists’ liability policies. …

Since proving harm is the only qualifying factor in their decision making process, it may be helpful for them to publicly state what percentage of the public being injured is beyond an acceptable threshold, and causes them to decide that licensing is needed.

ABMP is correct, I believe, in it's view that DORA has missed the boat in not considering the function of state regulation in providing oversight against harms of mal-intent and malfeasance. In defense of DORA, however, the statutory sunrise criteria limit considerations to competence.

The negative result of review of the legislative proposal (contained as an appendix to the DORA report) may have been predictable, but a good share of the fault for that predictability lies with the proposal itself.

ABMP has noted that massage therapy is the only health care profession subject to local regulation. It is also, however, the only profession purporting to be health care that has such a vague definition and that guarantees so few outcomes of training into practice within its licensing. We lack a common core curriculum that ensures graduates have a common set of knowledge, skills and abilities pertinent to the realm of health care. There are elements contained within the definition of massage that are not clear in their benefits as therapeutic interventions and those which also lack a scientific basis for required training. A health care profession needs to be more clearly defined and delimited. A health care profession also needs to guarantee more in the way of usable skills and knowledge to third-party stakeholders, including consumers, potential referrers, and reimbursors Other healthcare professionals are not going to refer to us because of what we know in theory, but because of what they are assured we can do in practice. Yet, what we currently see in the proposal is not the definition of a healthcare profession, but simply the broad definition from local regulation shifted upwards to the state. Classroom hours are not equivalent to competence.

In response to DORA's limitation to consider only harms from lack of competence, we should extend and clarify the competencies we assure as part of a core curriculum. The medical profession has extended the definition of competence beyond the technical skills into domains that include interpersonal skills and altruism toward patients. See, for example, a JAMA editorial by David Leach and a paper on defining and assessing competence by Epstein and Hundert. It appears that an opportunity was missed in the proposed bill to define issues of malfeasance within the context of competence training and assurance.

Perhaps, both in issues of technical competence and interpersonal competence, the biggest failure of the proposed regulation came in not addressing how regulation would explicitly protect the public. For example, the sunrise input included a number of instances of physical harm reported by insurance carriers. Those having training, however, are those most likely to join organizations providing professional liability coverage. Thus these cases of harm more likely represent the failures of current training to prevent harm than harm from a lack of training. The proposal should have addressed observed patterns of harm, how protocols and training to mitigate those patterns have been developed, and how the proposal would implement responsibility for developing such mitigations on an ongoing basis. Similar arguments could be advanced for malfeasance and mal-intent as failures of training and assessment in interpersonal and altruistic competence.

The failures of the review lie not just with the short-sightedness of DORA, but with the shortsightedness of the massage profession in not explicitly addressing issues of public protection and benefit. We badly need to move to a new level of self-reflection and self-definition rather than simply attempting to move vague definitions of the profession from the local to the state level. We should and can guarantee more to the public we claim to protect.

 

14 December 2007

Will the CA Legislature Take Up a Massage Bill in 2008?

Another twist potentially affecting massage legislation in 2008 just occurred. The Sacramento Bee reported today that Governor Schwarzenegger will declare a fiscal emergency in January based on the expected $14 billion dollar budget shortfall. Under such a declaration, the Bee notes that, If lawmakers fail to send the governor legislation addressing the budget problem within 45 days, they cannot take action on any other bills or adjourn until they do so.

Given the limited ability of the legislature to reach consensus on fiscal matters, this could have a big impact on the progress of bills deemed by the legislature to be nonessential.

 

09 December 2007

Colorado Review Nixes Massage Licensing

The blog from CLEAR (the Council for Licensing, Enforcement & Regulation) caught that the Colorado Department of Regulatory Agencies (DORA) reviewed a sunrise application for massage therapy licensing and came out against the move. It's worth the look at the DORA report itself. The review responsibility lies with the DORA Office of Policy, Research, and Regulatory Reform. Colorado is in a somewhat different situation from other unlicensed states in that the act allowing local agencies to regulate massage also provides an exemption for those from approved programs.

The CO review joins similar legislative auditor reviews by West Virginia and Georgia. What these reviews make pretty clear is that massage is not regulated because of inherent dangers from the practice of massage itself, but from social-political considerations of removing massage from local regulation designed to control prostitution. This legislative history is not without its continuing negative impacts. The legalistic definition of massage has been that of a wide net; far too wide to lead naturally to a competence-based definition of massage as a healthcare profession.

In trying to supplant local regulation, the definition and entry requirements guarantee little to third party stakeholders (consumers, referrers, third-party payers) other than that entrants have had the resources in time and finances to sit in class for extended hours with their ears open. We lack clear outcomes of training in terms of kinesthetic skills and abilities to use knowledge and it shows in what we aren't producing in terms of knowledge, skills, and abilities in those entering practice. In contrast, Paula Alsher of the Center for Effective Performance has a good article on Validating Knowledge through Testing and Assessment. Another contrast to what the massage profession has pursued in terms of ineffective “assessment” comes in the form of a recent paper by Ronald Epstein in the New England Journal of Medicine.

Ronald M. Epstein, M.D., Assessment in Medical Education. New England Journal of Medicine, 356(4), pp. 387-396, January 25, 2007

A New Year and a New Bill Likely in California

In November, ABMP informed their members to anticipate introduction of a new certification bill, similar to SB 731, in early 2008. The news from ABMP is that the bill will be “substantially similar” to what was in SB 731.

Discussions have been held in September and October with Senate and Assembly leadership offices, both Business and Professions Committees, the Assembly Appropriations Committee (where the massage bill got stuck in 2007), the Department of Consumer Affairs, and the Governor’s office. We are close to sending to the Legislative Council office a modestly tweaked “daughter of SB 731” bill draft. (The 2008 bill will be assigned a new number.) The changes do not materially change legislation substance, but do respond to inputs from certain committees and government agencies desiring language additions or deletions. We also anticipate having at least one additional author on the bill; expanded legislative leadership is almost always helpful.

NCBTMB Moves to Include Use of Distance Education

A recent move by the NCBTMB allows up to 300 hours of distance education (DE) for didactic classes out of the 500 hour prerequisites for certification. With the increasing use of DE over a range of K12 and adult education, it's refreshing to see that the NCBTMB has chosen not to “pick up coins in front of a steamroller” but to recognize emerging trends.

Most states don't require certification, only passage of an approved exam, thus the move should have little direct effect on current licensing practices. The NCBTMB exams already could be taken without certification prerequisites via selecting the NESL option on the application. What it does mean is that the NCBTMB certifications are less likely to get “backwatered” or “eddied out” as DE becomes more a part of state approved programs. Ultimately it's the responsibility and prerogative of the individual states to set licensing eligibility requirements. The presence of the Federation of State Massage Therapy Boards (FSMTB) will hopefully reduce the variations down to more conscious decisions based on state needs and demographics.

Those who are left in the backwaters are states like Illinois with recent licensing laws that included “classroom hour” restrictions in their bills. This was a short-lived reactionary phase as some in the profession realized that changes in licensing and technology were bringing new training providers into the field — providers more likely to teach to the explicit entry requirements rather than to prior tacit assumptions. While the laws can be fixed, reopening the legislative process always provides the legislature with an opportunity to include the unexpected. Then entry of new providers can be viewed among the feedbacks to change that I discuss in my December column for Massage Today, Reflections on Market Share.

NCBTMB up for Reapproval in 2008

While on the theme of the NCBTMB, it's worth noting that their approval as a certifying agency by NOCA/NCCA comes up for renewal in December 2008. In all likelihood most of the actual review would be months prior to that. So anyone with outstanding issues with NCBTMB service or timeliness has an opportunity to point those out to NOCA. This can be taken as one more means of getting the NCBTMB to focus and stay focused on their key tasks of providing exams and certifications with good customer service to all stakeholders, both applicants and state regulatory agencies.

Reinventing the Wheel on Practitioner Databanks

An NCBTMB press release back in June noted the naming of a chair to pursue creation of a national practitioner database to contain reports on disciplinary actions against massage practitioners. This seems a bit of a redundant effort given the ongoing development of the National Practitioner Databanks covering all healthcare disciplines. Massage reports have been included since about 1998. While only summary data is available to the general public, here's a sample of the type of information. It's not clear whether NCBTMB suffers from a lack of knowledge about the government developed databanks or simply from a "not invented here" attitude. This seems one more area in which the NCBTMB is losing their core focus of customer service in providing an exam/certification. They would be better advised to work with the Practitioner Data Bank Branch (PDBB) of the Human Resources and Services Administration rather than “rolling their own”.

Florida Reinstates Sunset Reviews

Another entry in the CLEAR blog notes that Florida has reinstated periodic sunset reviews of state agencies. It doesn't look like the Department of Business and Professional Regulation is scheduled until 2016, but there is an implication there that massage therapy licensing may get a review of need and process that hasn't been present for a while.

 

26 November 2007

During the Interregnum

It has been a while. An interregnum in my writing of the MPS while attending to other transitions and the coauthoring of a chapter for a survey book on massage modalities. In the short run, I've had a lot of things to catch up on. In the longer run, I should have more time for writing and teaching massage.

It has been a time long enough for SB 731 to make it into the Assembly Appropriations Committee in California and then die amid the chaos of the legislative quarrelling. SB 731 was not alone, in such death from neglect. Several existing regulatory boards also were inadvertently allowed to die by sunsetting of their authorizations. At the same time, legislation to place a measure before the voters to bring the wayward Board of Chiropractic Examiners (BCE) under legislative oversight was vetoed by Governor Schwarzenegger. This bill also was tied to half the funding for BCE staff, so BCE effectiveness is likely to be minimal.

It has been long enough that the Texas legislature passed HB 2644, raising the massage training requirement to 500 hours with only about two and a half months for schools to implement new curricula. Other facets of that bill, including a stipulation for licensing nonmassage touch professions, are still up in the air and likely unimplementable. Creating new licenses is an expensive undertaking, particularly when the guidance is vague and no extra money is provided.

It has been long enough for the Federation of State Massage Therapy Boards (FSMTB) to float their new Massage & Bodywork Licensing Examine (MBLEx).

It has also been long enough for the NCBTMB to subject themselves to an independent review. Although the reviewers are not named [another unusual bit of withheld information for an independent review], the report seems fair enough. What it doesn't answer is the need for an ongoing structure of review and oversight.

Finally, it has been long enough for the MPS itself to receive a facelift and a transfer to a directory appropriately named “mps”. The old paths (to blogger) still work, but they get redirected to the new location. There's still some minor cleanup to do to make it all into validated XHTML, but the major reformatting is done.

 

23 July 2007

More Communiques on the NCBTMB

Over the weekend, I received two more items from resigned NCBTMB board members. The first is another press release from the five former Directors about the reappointment of Neal Delaporta and Monica Reno to the NCBTMB. The second is a plea to the AMTA Board of Directors to take action in the NCBTMB matter.

Again, I feel these communiques point out that the NCBTMB doesn't have sufficient external oversight and that there isn't a suitable body and framework for testimony and discussion. This is in stark contrast to the legislative oversight that a professional board would incur.

Apprenticeships, Distance Education, & Licensing Laws

I've noted before that Australia has "New Apprenticeships" and the UK "Modern Apprenticeships" as formal educational methods. In a column back in 2001, How People Learn, I also drew on some of the educational material on why apprenticeships make "learning sense". Recently, I've also run into California having, at least to some extent, a formal state-connected interest in apprenticeships with A Snapshot of Apprenticeship in California and the CA Division of Apprenticeship Standards.

What is unfortunate is that massage regulation has pretty much been universally written, at least in the U.S., in a manner that excludes such programs. It stems back to such legislation being defined in terms of processes rather than in terms of specific training outcomes. If training outcomes were used and assessed, then any means of achieving them, including apprenticeships would suffice. To do this, however, we need to define "core massage" and exactly what we expect graduates to be able to do — demonstrable knowledge, skills, and abilities — upon graduation. It is at least partially this lack of objective minimal competencies that is leading to dependence on the process of education and to an uncertainty by stakeholders of what they can legitimately expect from graduates — i.e. a loss of credibility. Hours are not standards of attainment but simply requirements.

In another aspect of the regulation versus education quandaries, Cliff Korn has written one of the most thoughtful essays on distance education I've yet to see out of the massage profession in his August column Keepers of the Yardstick.

I agree about 95% with Cliff, differing to an extent only on his bottom line of placing the responsibility for distance education standards with massage boards. In some states this may be appropriate, because such boards will also have authority to approve schools. In other states, such as CA in the past and likely in the future, such authority rests with an independent agency of the state. Massage boards would need to work with such an agency on an advisory level, but would be unlikely to have authority for teaching methods approval.

The other aspect of this is that we need to quit considering massage training as apart from all other training. There are other professions that have kinesthetic skill training. Thus a state likely should and hopefully will develop uniform standards for use of distance education across multiple professions. Massage boards should again have input, but would not have the final authority or responsibility.

I don't think by difference with Cliff is so much a difference in philosophy as that I just come from a larger educational and technical perspective. As a physicist, I have seen DE methods incorporated into everything from technical refreshers into annual security/classification rebriefings. As is apprenticeship, DE is simply another tool for conveying information and learning. For some, multimedia is likely a far better match than watching someone give a linear lecture.

Mark Prensky written a number of articles on the emerging learning styles of those exposed to multi-stream learning from an early age. A couple of his classic essays are:

Further (and more current) writing by Marc Prensky is on his main writing page.

I continue to have a problem with how regulation for professional entry is (being) defined as a process rather than as a set of observable/demonstrable outcomes of training. I'm going to continue to hammer on this and on the desirability of reframing U.S. health care regulation along the British Columbia and Ontario lines — centralized lists of restricted acts with title acts to define scope of practice within the health care system. The form of regulation is the less frequently discussed side of the "Canadian System", compared to the single-payer aspect. I'm not sure that it's any less important to the outcome. See the British Columbia Health Professions Council's Shared Scope of Practice Model Working Paper

 

15 July 2007

Changing from Tacit to Explicit Requirements

I've had a post on the effects of changing from tacit to explicit entry requirements in the works for a while on my Ramblemusesm Touch Points Blog. It started off there, about a month ago, because I was coming from the more general perspective of systems theory and unanticipated consequences of well-meant changes. What finally jarred it loose was an email list discussion on corporate massage schools and career colleges. I continue to hold with the opinion that, once explicit requirements are established, it's germane for a school to teach to them. In other words, explicit requirements totally replace tacit requirements. Beyond that, I'll let the post speak for itself.

 

19 June 2007

One More Letter from NCBTMB Ex-Board Members

I received one more letter from NCBTMB ex-board members outlining a number of issues. Some points I agree with and some I disagree with. First, the letter points out something that I believe has been a problem with the NCBTMB from the start; they want the responsibility of a semi-regulatory agency but want to act like a professional advocacy organization. As the letter puts it:

NCBTMB's only mission is to conduct a credible certification program that protects the public. The Chair, with the support of the Executive Director, appears to be seeking to use NCBTMB to make sweeping changes in the entire massage therapy and bodywork profession. However, NCBTMB is not a membership association and has no authority to engage in these kinds of activities. Because the normal internal process of checks and balances have been compromised, it is our responsibility as former Board members to bring this concern to the attention of stakeholders in the profession so that immediate action to compel change is taken at this critical juncture.

I think the ex-board members read this one correctly. The sense of having a mission as an advocacy agency shows up strongly in Massage Today's interview with Chair Donna Feeley and CEO Chris Laxton.

I've been a longstanding believer and promoter of CAM, especially how it integrates into the overall public health community. Massage and bodywork are used as CAM therapies for a myriad of health reasons, including the treatment of specific conditions, as well as a means for promoting health and wellness. We just joined the ACCAHC (Academic Consortium for Complementary and Alternative Health Care), and we will be starting to move forward with them. Chris and I will be making some visits to the Washington, D.C. area and introducing ourselves and NCBMB to key people. We also submitted an abstract to the American Public Health Association’s special primary interest group on complementary and alternative health care practices, and we are hoping to be on their agenda at their conference this year in Washington, D.C.

It is not that these are such bad goals, but that a certification agency whose use is mandated by numerous states is not the agency that should be advocating for them. Use of funds for such activities by the NCBTMB only underscores the constitutional problems I've previously presented. Advocacy should be done by professional organizations which should legitimately have 501(c)(6) "Business League" status if nonprofit or could be for-profit service organizations. A certification organization should be a non-advocacy 501(c)(3) organization and stick to its ostensible purpose of verifying educational outcomes.

The ex-board members also complain about the issue of distance education. It may well be that the NCBTMB decisions were not made according to procedures. That said, however, it's also an area from which the NCBTMB is wise to retreat as fast as possible. A certifying agency should be verifying attainment of knowledge, rather than trying to stipulate the technology via which such knowledge is taught. Individual states as well as Department of Education approved accreditation agencies have the role of school approval. Distance education is no longer correspondence courses. With the Internet, many concept courses are being taught as hybrid courses. Stopping DE ranks right in there with stopping high definition TV, cell phones, and music downloads. It's not something that's going to happen. It's instructive to look back at a National Educational Association Poll from 2000 and then realize that we have seven years of technological developement and presence since then. That seven years has seen the development of complex learning environments such as Moodle and the Sakai Project. Increasingly, students are going to encounter and become familiar with such Virtual Learning Environments (VLEs) even before they leave high school. Change happens.

What can be said is that kinesthetic skills should not be taught by DE, simply because they require practice and hands-on correction. That leaves DE addressing learning of conceptual knowledge, which is exactly the area that the NCBTMB exams are supposedly designed to verify.

It's high time that the NCBTMB gets back to focusing on just such verification issues — they've already used up their full allotment of dysfunctional behavior and then some. A question asked by California State Senator Mark Ridley-Thomas during hearings on Board of Chiropractic Examiners actions (at 2:31:00 on the video) keeps coming back to me.

The question that still remains yet to be answered is how do you unring that bell? I'm just trying to restate or recapture the gravity of the range of issues and how we seek to right that which is arguably a fair amount of damage, some of it better substantiated than others, but there is a huge amount here.

 

18 June 2007

Pilot test for the FSMTB Massage & Bodywork Licensing Exam

A glance at the web site for the Federation of State Massage Therapy Boards (FSMTB) shows that they will be running a pilot test of their new Massage and Bodywork Licensing Exam from 24 July through 7 August. The FSMTB is a 501(3)(c) nonprofit run by representatives from state licensing agencies. The FSMTB thus is thus an educational nonprofit (rather than a business league (501(c)(6)) and has public accountability back to the member states.

 

17 June 2007

NCBTMB Bylaw Changes Create Election Questions

Toward the end of last week, I received the following letter from from two reliable sources. It again expresses concern from past board members about the transparency and processes by which the NCBTMB is currently being run. Once again, it underscores that there is a crying need for checks and balances that simply aren't there. Once again, it underscores that one can't simply turn over the shaping of the profession to a small group with cheer-leading by trade publications from the sidelines; particularly when use of the NCBTMB exams is required by state regulation.

In December 2006, the NCBTMB Board approved a Bylaw change to increase the number of NCBTMB Board of Directors to 11 positions. The new Directors would commence their term of service in January 2008 (see Bylaw excerpt below). The additional Board members will support the increased time, energy, and effort required of Directors due to the number of issues being worked and the diverse knowledge and skill sets required.

To implement the 2006 NCBTMB Bylaws change, the 2007 NCBTMB election process should offer five Director vacancies, with terms as follows:

  • The usual three newly elected Directors for a three year term;
  • A fourth additional newly elected Director who will join the above group and also serve three years;
  • A fifth newly elected Director who will serve only two years.

The terms are staggered so that only a portion of the Board is new in any given year.

In the recent NCBTMB Call for Candidates there was no mention about the number of open positions to be elected for the Board of Directors. This is the first time in recent years that the Call for Candidates has not stated the number of Board vacancies.

Information received from the NCBTMB national office was that only two Board vacancies have to be filled. This raises the following questions:

  • Why were 80,000+ certificants not notified of the increase in the size of their Board from nine (9) to eleven (11) Directors?
  • Why would the first Call for Candidates from the Nominations Committee not reflect the number of Board positions to be filled?
  • Why would the NCBTMB national staff not know the number of positions to be filled based upon the current Bylaws?
  • Is the organization in compliance with the Bylaws?

We the undersigned former Directors formally request that the Board immediately clarify the actual number of Board positions to be filled in the 2007 election via written correspondence to all certificants.

Sincerely,

Kat Burnett, NCTMB
(Director, 2004-2007, Secretary/Treasurer 2007, resigned April 2007)

Bob Lehnberg, NCTMB
(Director, 2003-2007, Chair-Elect 2007, resigned May 2007)

Elizabeth McIntyre, NCTMB
(Director, 2002-2006, Immediate Past Chair 2007)

Cosper Scafidi, NCTMB
(Director, 2006-2007, resigned April 2007)

Bill Stoehs
(Director - Public Member, 2000-2006, Secretary/Treasurer 2004-2006)

All of the above individuals signed onto this letter. June 13, 2007

Certificant call to action:

We encourage all certificants to become involved in your election process and become involved in selecting your future NCBTMB leaders. We urge you to send an email to Chair Donna Feeley (donnafeeley@aol.com) and copy the 2007 Nomination Chair Virginia Cowen (gscowen@msn.com) and Chris Laxton, NCBTMB Executive Director (claxton@ncbtmb.com) to express your concerns and expectations that the NCBTMB Bylaws will be followed. Please share this email with other certificants.

NCBTMB Bylaw, Article VI. Board of Directors 6.1 Composition.

Except as otherwise provided herein, the Board of Directors shall be composed of nine (9) voting members through 2007 and eleven (11) voting members thereafter, of which: 1) none shall hold a national level office in another therapeutic massage and/or bodywork professional or trade organization of the regulated profession;

2) no more than two (2) may be therapeutic massage and/or bodywork school owners or administrators;

3) no more than two (2) may be employees or members of government regulatory agencies or boards which regulate the practice of therapeutic massage and/or bodywork; and

4) no less than two (2) and no more than three (3) shall be 'public members' representing the interests of the public and who shall have no professional or material financial interest in the field of therapeutic massage and bodywork.

The composition of the Board or any member thereon may be further defined by accreditation or policies maintained by NCBTMB. The nine (9) (through 2007) or eleven (11) (in 2008 and thereafter) voting members of the Board of Directors are referred herein, from time to time, as at-large members of the Board. (Ammended 12/15/06)

 

07 June 2007

NOCA Ignores Public Accountability Issues

Last week, I was taking off taking the Santa Fe Science Writing Workshop, allowing me to learn from and interact with a number of experienced science journalists and editors. Indirect effects included both delaying this post and adding to my journalistic motivation.

While at the workshop, I learned from NOCA that they have elected not to pursue NCBTMB issues, despite the long history of problems and recent string of resignations in protest by three board members.

Mr. Grant,

I have reviewed the information provided in your e-mail below. Based on the information there does not appear to be evidence of non-conformance to the NCCA Standards. Thank you for submitting the information and please notify me if you obtain documentation or evidence that would appear to be in conflict with the standards.

Sincerely,

Jim Kendzel MPH, SPHR
Executive Director, NOCA/NCCA
2025 M Street, N.W., Suite 800
Washington, D.C. 20036-3309
Ph 202-367-1218
Fax 202-367-2218

I was able to send Mr. Kendzel a prompt response.

Dear Mr. Kendzel,

Okay. Thanks for getting back to me.

I appreciate your checking on compliance with NOCA/NCCA standards. At the same time, I do feel that an agency mandated by many states needs higher standards of public review and accountability than a purely voluntary certification. As I noted in my blog, this is why states have open meeting laws affecting accountability and public input.

I was an invited educator to the formation meetings for the Federation of State Massage Therapy Boards (FSMTB) in 2005. Part of the motivation at that time for the creation of FSMTB was the feeling that NCBTMB was not sufficiently responsive, sufficiently accountable, or sufficiently candidate service oriented to meet board needs. By this summer, it is anticipated that FSMTB will have brought up its own licensing exam. I also realize that those requirements may go beyond NOCA/NCCA considerations and standards, as the results of your review seem to indicate.

At the time of the May 2005 initial formation meeting of the FSMTB, I had drafted a white paper laying out some of these thoughts. This was distributed at both the May and larger September meetings of the FSMTB.

I pass that along simply in the way of background information.

Sincerely,

Keith Eric Grant

Despite the negative response from NOCA, I would encourage those having problems with the NCBTMB to continue to mail letters to NOCA at the address above or via email. I would also encourage sending copies of such letters to any state massage regulatory agency or board and to any joint legislative committee overseeing occupational regulation in your state. Keep the pressure on for transparency and public accountability.

As a further effort on pushing both for NCBTMB transparency and accountability and the constitutional right to opt-out of mandated payment of funds used by NCBTMB for political and ideological speech, I was able to search up (via the Foundation Center) the 2004 Form 990 and 2005 Form 990 that the IRS required the NCBTMB to file. Both reveal significant expenditures for marketing and PR. Also, here's a guide on reading IRS Form 990 from the Nonprofit Coordinating Committee of New York.

It's worth noting that the NCBTMB is a 501(c)(6) organization (business league), not a 501(c)(3) nonprofit. The latter can "test for public safety", but can't engage in advocacy and issue lobbying in the way a 501(c)(6) can. The distinction is that the NCBTMB looks like a professional organization rather than a nonprofit foundation. The Massage Therapy Foundation, by contrast, is a 501(c)(3), as is the Federation of State Massage Therapy Boards (FSMTB).

An advocacy oriented professional organization is a fine thing in its place, but that place should not be in a semi-regulatory context. In a sunset review of the California Interior Design Organization, for example, the organization was forced to convert from a 501(c)(6) to a 501(c)(3) precisely because of this regulatory versus advocacy distinction.

 

27 May 2007

Another Lapse in NCBTMB Due Process?

In what continues to be yet another item in an unprecedented chain of board machinations, I've gotten hold of a letter apparently drafted by NCBTMB CEO Chris Laxton and signed by board of directors chair Donna Feeley. The letter summarily suspends the position of Immediate Past Chair (IPA). As allowed for in the NCBTMB bylaws, the IPA is defined in the Policies & Procedures as a non-voting participant in board and several key committee meetings for six months after their term as chair. Far more worrisome than the particulars of disagreements is the seeming inability of the NCBTMB to stay within defined processes and to maintain a breadth of viewpoints. They are once again demonstrating the lack of public accountability and the lack of wisdom in placing state responsibilities where such accountability is lacking.

 

20 May 2007

Indiana's SB 320 Likely Vulnerable to Free Speech Challenge

With the ink barely dry on Indiana's SB 320, a massage certification act, it appears that part of the act's stipulations may violate first amendment protections on commercial speech. SB 320 is a title act, restricting the use of specific titles to those who are certified under the law. The is in contrast to a practice act, which makes it illegal to practice unless licensed by the state. Unfortunately, SB 320 restricts use of the generic, descriptive term "massage therapist", making it difficult for those who legally practice massage but don't wish to certify or meet the qualifications to certify to truthfully describe their practices. The Institute of Justice is taking on a similar title act in Texas, that prohibits use of the generic term "interior designer".

In Zauderer V. Office Of Disciplinary Counsel (471 U.S. 626, 1985), the U.S. Supreme Court summarized the protection of commercial speech.

The States and the Federal Government are free to prevent the dissemination of commercial speech that is false, deceptive, or misleading or that proposes an illegal transaction. Commercial speech that is not false or deceptive and does not concern unlawful activities, however, may be restricted only in the service of a substantial governmental interest, and only through means that directly advance that interest.

This Court reaffirmed this principle in Ibanez V. Florida Dept. Of Bus. & Prof. Reg. (No. 93-639 ,1994), a certiorari to the District Court Of Appeals of Florida, First District.

The State may ban such speech only if it is false, deceptive, or misleading. See, e.g., Zauderer v. Office of Disciplinary Counsel of Supreme Court of Ohio, 471 U.S. 626, 638 . If it is not, the State can restrict it, but only upon a showing that the restriction directly and materially advances a substantial state interest in a manner no more extensive than necessary to serve that interest.

The issues, including specificity of title protections an "narrowness of tailoring" a discussed further in Miller v Stuart (No. 96-2068, 11th Circuit District Court, 1997) and Passions Video v Jay Nixon (No. 05-4053, 8th Circuit Court of Appeals, 2006). The latter case notes:

The First Amendment provides that “Congress shall make no law … abridging the freedom of speech.” U.S. Const. amend I. The amendment applies to state and local governments through the Fourteenth Amendment. Central Hudson Gas & Elec. Corp. v. Public Serv. Comm’n, 447 U.S. 557, 561 (1980).

Indiana had the choice of passing a practice act, making the practice of massage illegal except for those licensed. By making the practice of massage otherwise illegal, a practice act would have fulfilled the "not false, deceptive, misleading, or illegal" requirements for regulating the generic title. In forgoing a practice act but then regulating the generic title, IN SB 320 set up an unnecessary conflict with the first amendment protections of commercial speech. SB 320 should have stuck with defining and protecting a recognizable title not in generic use — in short, a title that, in the commercial world, could have been trademarked. Legally consistent occupational regulation is clearly a still evolving art.

 

13 May 2007

Governor Mitch Daniels Signs IN SB 320

An AP news release carried by a number of Indiana newspapers noted that Governor Mitch Daniels narrowly decided to sign SB 320, a title protection act establishing a massage therapy board to certify practitioners. The bill, which previously had explicitly named required exams, now simply stipulates that an applicant must pass a board approved exam and that the board must adopt at least two such exams.

Daniels said he reluctantly signed the massage therapists bill mainly because police officials had said that licensing them would provide a useful tool for combating prostitution.

Daniels said he considered rejecting the bill because “those seeking to regulate participation in an occupation should carry the burden of proof that such regulation is truly necessary and not simply a self-interested effort to restrict competition.”

The news release also noted that Daniels had vetoed a similar bill for interior designers.

CT Legislator Aims to 'Disambiguate' Massage Therapy

In a move worthy of a Wikipedia disambiguation page, the Stamford CT Advocate reports that State Senator Bob Duff is out to pass a law limiting the advertising use of the term 'massage therapist' to those who are state licensed. The article doesn't state the law's effect on the use of 'massage' by itself. The article does note that the bill wouldn't affect use of terms like spa or 'relaxation center'. Pertinent to all such regulation, the article comments that the Department of Public Health staff may not be sufficient to effectively enforce the bill if it's signed by CT Governor M. Jodi Rell. If you can't enforce it consistently, it isn't much a a deterrent given the economic motivations of 'inequity'.

The Revolving NCBTMB Door

I heard yesterday that yet another board member has resigned from the NCBTMB. This latest resignation also includes resignation from the Task Force on Distance Learning and the Job Analysis Task Force. All of these recent resignations make clear that the NCB has significant problems in achieving internal consensus on its goals and methods, except, perhaps, by eliminating diversity of opinion.

You wouldn't think that this consensus would be that hard, except that it's also clear that the NCBTMB has strayed far from the path of simply providing an exam designed to assess attainment of minimum necessary knowledge about the practice of massage. The existence of the Distance Education Task Force in itself, is a sign that the NCB has been trying to pressure not only what knowledge is obtained by students, but the tools and methods used for teaching. That's an unwise foray by the NCB into the domain of state agencies in regulating postsecondary schools. They need to get over the idea that massage education isn't simply going to be part of a larger system of postsecondary career training.

Assessing competence mean determining, via job surveys, the contexts and tasks within contexts that are being done. The next, and undoubtedly the most controversial, is to then determine the minimum knowledge, skills, and abilities required to effectively and safely perform the required tasks. The NCBTMB (or other assessing agency) should be able to provide a list of contexts, tasks, and individual competencies required for each task. To my knowledge, the NCB has never done this, leaving it vague exactly what they certify. The vagueness in defining what's being assess coupled with straying away from assessment have, I believe, fueled much of the problems the NCB is continuing to have.

Civics 101 for Occupational Regulation

Some of the questions I've been fielding on the body_politics email list have convinced me that a short primer on government and civics is in order.

The first part of this is a reminder that the federal constitution is the law of the land, superceding all other federal and state laws. Yet, often constitutional issues require a court decision to clarify whether or not a federal or state law, although passed, is in conflict with the constitution and thus invalid. The final authority in this is the U.S. Supreme court, which looks both at the constitution and the lower law in question and at the weight of precedence — i.e. previously decided cases. Thus, when I say, as in my white paper, that states likely can't require membership in private organizations as a prerequisite for licensing, I'm not talking about the states ability to pass such a law or that such laws might currently exist. What I'm referring to is that the courts, based on precedence, will likely find the law to be invalid because it conflicts with rights of freedom of association and freedom of expression.

Apart from conflicts with federal law, the authority to regulate professions rests with the individual states. While it is desirable to minimize random differences in regulation between states, this authority resides at the state level so that states can independently evaluate their own needs and demographics in regulating professions.

The standards of state use of a private agency in regulation are that the use stems from a clear state policy and the the state actively reviews and supervises (California Liquor Dealers v. Midcal Aluminum, 445 U.S. 97 (1980)). This, however, requires that the state provides the resources for active supervision and review and that the private agency cooperates in providing sufficient background information as requested by the state. A breakdown on either side can become a problem.

While the Bagley-Keane Act is California specific, I expect most states have a similar act that regulates openness of meetings of public agencies, which includes occupational regulatory boards. If it is considered important that matters affecting regulation be conducted openly and be available on an agenda for a public meeting, why should it be considered sufficient for the public agency merely to stipulate use of a private agency, allowing that agency to have closed meetings and make decisions without public standards of review?

Section 11120: It is the public policy of this state that public agencies exist to aid in the conduct of the people's business and the proceedings of public agencies be conducted openly so that the public may remain informed. In enacting this article the Legislature finds and declares that it is the intent of the law that actions of state agencies be taken openly and that their deliberation be conducted openly. The people of this state do not yield their sovereignty to the agencies which serve them. The people, in delegating authority, do not give their public servants the right to decide what is good for the people to know and what is not good for them to know. The people insist on remaining informed so that they may retain control over the instruments they have created. This article shall be known and may be cited as the Bagley-Keene Open Meeting Act.

One of the reasons that the CA legislature recently blew up over the behavior of the Board of Chiropractic Examiners was that they weren't acting in accord with the Bagley-Keane Act. The BCE members were conducting multiple member discussions by email, and, they were doing this despite multiple warnings by staff. The CA legislature created a mini-civic lesson in that hearing, which is available as a Windows Media file from the California Channel. It's worth the viewing.

When a state mandates that an applicant pay fees to a private agency, why shouldn't that agency be accountable for the use of those fees solely to maintain and provide that exam? For a voluntary certification, the individual can determine for themselves whether or not they feel the expenditure of funds provides sufficient benefit. When the state mandates that same exam, the individual has been denied that right of determination, thus there is a higher level of public transparency expected. When I say, as I have done in recent MPS posts, that it is time to insist on an independent audit of the NCBTMB, it is to create that accountability and transparency.

Also consider the need for public accountability in light of the federal Sarbanes-Oxley act.

 

07 May 2007

Sending of Feedblitz Emails

One of the options for this blog, offered at the bottom of the navigation area, is to subscribe to emails of the associated RSS feed (Really Simple Syndication) sent out by Feedblitz. Over the last few posts, I had noticed that these weren't going out. When I would check in Feedblitz, there would be an indication of a problem accessing the feed, but when I ran test diagnostics, everything would pop back to normal. I think (hope) that I've tracked this down to Feedblitz using several different IP addresses to pulse blogs and one or more of those having been shut out by some security changes I'd made to reduce comment spam on my Ramblemuse Touchpoints blog. The comments were moderated, so nothing was getting posted, but there are a goodly number of spambots pushing meds, porn, and other such stuff. I've since installed a better third party filter and taken out some of the IP address filtering. I believe that should correct the situation and the Feedblitz emails should flow out once again. Sorry about the interruption.

The spam, by the way, had nothing to do with Feedblitz services, but with unrelated Trojan infected machines on the same IP address range.

 

05 May 2007

An Encouraging Dialog with NOCA

After my last post to the MPS, I sent a courtesy email to NOCA (info@noca.org) informing them of my post. Here's the reply I received back from Jim Kendzel, the executive director for NOCA/NCCA.

Dear Mr. Grant,

Thank you for the courtesy of informing me of your reference to NOCA in your blog referenced in your e-mail below. In the future I would hope that you consider contacting us first to find out our procedures prior to publishing your blog in order to ensure your information is correct.

NCCA does in fact have a complaint procedure and it is available to anyone simply by contacting NCCA directly. Once someone contacts NCCA what typically occurs is the individual is provided a copy of the procedures (attached) and kept informed of the investigation as it proceeds. We will review the information provided on your blog to determine if there are potential concerns related to compliance with the NCCA Standards. If you have additional information you would like to share please feel free to do so.

You have raised a good point concerning having specific information about how to submit a complaint on our web site. We will look into that immediately and provide clearer direction on how information can be supplied.

I would appreciate your consideration in providing further clarification in your blog concerning the process available to your readers concerning issues or concerns they may have related to NCCA accredited programs. The integrity and credibility of the NCCA Accreditation process and the impact of accredited programs on the individuals utilizing the services of those programs is our highest priority.

Sincerely,

Jim Kendzel, MPH, SPHR
Executive Director NOCA/NCCA
202-367-2218

As the title line for this post suggests, I consider this an encouraging response form NOCA. It also is a clear indication that others having information to share on the current NCBTMB problems have a place to send their input.

For the record, I also looked back in the archives of the MPS, since I recalled a prior query to NOCA. That's discussed in the second item I posted for 23 May 2004, More on Changes in NCTMB Prerequisites.

So, in considering this to be the start of a constructive dialog, here's my reply back to Jim Kendzel (with a few minor text to HTML formatting changes). Hopefully, all of this will lead to some corrective pressure and guidance to resolve the long-running NCBTMB problems.

Dear Mr. Kendzel,

Thank you for your prompt reply. I will be happy to include your reply on my blog.

At the same time, I do believe that NOCA needs to further consider the implications of needed oversight of government mandated use of exams if you are not going to limit those you accredit to voluntary certifications (as was explicit in paragraph two of your 1995 standards but not the 2005 standards). Within this, I would include standards of ethics for board members, standards of public comment and review, and certifying agency board member training to be sufficiently familiar with legislative/regulatory frameworks, along with an obvious complaint mechanism. In short, NOCA should provide the same standards of oversight that a legislative oversight committee would have of regulatory boards.

I also know that, despite years of curt (if any) phone responses from the NCBTMB and inability to process applications and requests for information in a timely manner, there has been little or no perception of NOCA as providing oversight. Along with the above, perhaps NOCA should require agencies to post a notice that complaints against them should be sent to NOCA, much as states require OSHA notices to be posted by employers. Consider, for example, the May 2006 and March 2007 editorials by Cliff Korn, editor of "Massage Today". Notably absent is any consideration of active oversight of the NCBTMB by NOCA, even though there are clear statements of organizational incompetence. It's all too obvious that more active intervention is required to insure that credentialing agencies stay on track. My concern here is not punishment of an agency, but effective guidance to insure competence and an attitude of being in public service.

As an oversight example, the California Board of Chiropractic Examiners recently ignored a number of legal protocols in a meeting on March 1 of this year. Before the end of the month, there was a hearing before the joint legislative committee that has subsequently resulted in a bill to place an amendment to the 1922 chiropractic initiative before the voters -- essentially bringing it more directly under oversight by the legislature. The hearing is instructive to watch. It's available as a Windows Media stream [the hearing doesn't start until about 17 minutes in].

I would also urge you to consider that there may be other legal requirements and limitations. For example, I would again urge you to have your legal staff consider the implications to NOCA approved certifying agencies of the court decisions and discussion I highlight under my white paper: Constitutional Issues Pertaining to Required Membership and/or Use of Required Fees Prerequisite to Licensing.

I've also discussed more on the potential anti-trust issues in my white paper "Motivations for a New Massage Therapy Licensing Exam" that I wrote for the first organizational meeting of the Federation of State Massage Therapy Boards (FSMTB) in May 2005. Subsequent to that, the FSMTB legal counsel, who has been active with the Federation of Associations of Regulatory Boards (FARB) issued a memo regarding delegation of authority: Delegation of Authority for Competency Assessment.

I'll also note that in 2003, the Federal Trade Commission held a series of hearings on competition and health care regulation, leading to a subsequent report.

In particular, the Wednesday 11 June 2003 morning session focused on state action immunity and issues of use of private agencies. The transcripts and slides are available. This hearing and report also formed the basis for the June 2006 issue of the Journal of Health Politics, Policy and Law.

So, please take my blog comments in the light of a constructive dialog urging greater appreciation of the implications of moving into a state mandated venue as opposed to a purely voluntary venue. The FTC/DOJ hearings also are an indication that full consideration of the implications of private agency use is an evolving awareness on multiple fronts. Note also, while the NCBTMB is a specific example of problems, my concerns extend to the larger framework of private agency use and public accountability.

Thanks again for your reply and consideration.

Sincerely,

Keith Eric Grant, PhD

So, again, I consider the response and the copy of NCCA's disciplinary procedures to be an extremely encouraging sign in this long journey of NCBTMB woes and tribulations. My hope is that this will identify problems, impel necessary structural changes, and get the organizational process and culture into recovery. If the NCBTMB needs the motivations of probation and a third party monitor to meet needed changes, as the California legislature has required of some regulatory boards, perhaps NCCA can also help to facilitate that.

 

03 May 2007

An Increasingly Apparent Need for Oversight of the NCBTMB

Whatever one thinks of the concept of having a required entry exam for massage, the National Certification Board for Therapeutic Massage & Bodywork (NCBTMB) continues to raise serious concerns about the oversight of such an exam. It was partly, in fact, just such concerns that led to the formation of the Federation of State Massage Therapy Boards (FSMTB) and their decision to float their own entrance exam by this summer. I had written a white paper for the first FSMTB organizational meeting. As a federation of state regulation agencies, the FSMTB has a line to public accountability through the states the individual boards represent.

In contrast, NCBTMB has never had such a line of accountability and it has been increasingly demonstrating the need for one. NCBTMB is accredited by NOCA/NCCA, which is itself a private consortium originally set up to promote standards for purely voluntary certifications. A purely voluntary certification relies on the reputation of the certifying agency for its value and continuation. A voluntary certification with a sullied reputation will rapidly fall into disuse and oblivion. A mandated exam, however, requires more extensive mechanisms for handling complaints and requiring accountability. NOCA/NCCA does not appear to provide this level of oversight. There is, for example, no complaint form on the NOCA/NCCA website.

Over the last few years, the NCBTMB has managed to garner a substantial amount of concern. The is exemplified by the following articles.

Today, from two different sources, I received two letters of resignation from NCTMB board members, one from Cosper Scafidi and one from Kathleen N. Burnett. The list above lends credence to the validity of these letters. Both are based upon deep concerns with NCBTMB directions and management.

It seems clear that there is an urgent need for an independent financial audit of the NCBTMB.. Without such an audit, there is little grounds for trusting that funds aren't being substantially misused or of correcting such misuse if it is occurring. It is also clear that states must determine a means to provide better oversight of private agencies that they use to set occupational requirements.

A first step to getting accountability is reporting problems. Within individual states, complaints should be made to the joint legislative committee overseeing the regulation of business and professions (B&P) or, in the absence of a joint committee, to the independent committees of the separate legislative houses. Complaints could also be made to a state's attorney general. Because the NCBTMB exam is mandated by some states, complaints could also be made to the anti-trust division of the federal department of justice. State immunity from anti-trust requires that the states actively oversee decisions of private agencies they use to set practice requirements. See the "Midcal Aluminum" decision linked from "Constitutional Issues Pertaining to Required Membership and/or Use of Required Fees Prerequisite to Licensing". The need for an audit, notification of use of funds from mandated fees to a private organization, and a capability to "opt-out" are brought out in "Teachers v. Hudson", also linked from that document.

"Power tends to corrupt and absolute power corrupts absolutely" — Lord Acton

 

10 April 2007

SB 731 B&P Hearing on April 23

SB 731, the current California bill to create a state-supervised non-profit massage certification organization, is now scheduled to come before the Senate Committee on Business, Professions, and Economic Development on April 23. General practice is to post a pre-hearing bill analysis, which has not been done yet. Such an analysis also contains a summary of input from various organizations supporting and opposing a bill, so it provides an opportunity to email the committee (and the news media) on the credibility of claims being made.

Here's the letter I sent to the B&P chair, Senator Mark Ridley-Thomas, my own Senator, Senator Ellen Corbett, and the bill's author, Senator Jenny Oropeza. Once again, I'm pushing for retaining the 250 hour entry tier and, to quash the hype on the meaning of training hours, more accountability in having well-defined outcomes for the hours required. That goes along with other work I'm doing on matching training to learning gaps and in defining clear training outcomes.

SB 731, creating an independent Massage Therapy Organization (MTO), is scheduled to be heard by the Senate Committee on Business, Professions, and Economic Development. To its substantial credit, this bill address a very real need to create a fair and equitable business environment for the many dedicated and hard-working massage practitioners in California.

While SB 731 technically establishes only a voluntary certification, because of its interaction with local massage regulation, it's very likely that the provisions in SB 731 will have much of the impact of a practice act. It can not be considered voluntary when uncertified practitioners are likely to find few spas willing to hire them (zoning provisions and portability restrictions) and cities and counties even less willing to regulate them in a fair manner. Whatever it's wording, SB 731 will not act in practice like a typical voluntary certification. In the wording of the Center for Public Interest Law (CPIL), a substantial market flaw exists [FELL85]. SB731 thus deserves more careful scrutiny than a typical title protection bill.

While I support the intent of SB 731, I strongly oppose the phase-out of the 250 hour entry tier in the current wording. If universal training outcomes were clearly defined as to both need and resulting knowledge, skills, and abilities, either by SB731 or by the massage profession itself, and if 250 hours proved insufficient to convey such training, my objections would be stilled. Such is not the case.

Unfortunately, many members of the massage profession have confused spending vaguely defined hours in a classroom with meeting well-defined training goals with measurable outcomes. Many have confused the facade of a structure of training with the work and effort required to flesh out the contents. Professional certifications have been defined and promoted where it has never been made clear exactly what usable outcomes of training are being certified. Lack of clear goals and lack of measurable outcomes is not a characteristic that should be rewarded with requirements for more hours of training. Before requiring 500 hours, we need to first be clear about what requirements of public benefit can be accomplished within 250 hours. We are not there.

We are fortunate that the practice of massage is extremely safe, as things go in life. This has been the conclusion of two papers reviewing the medical literature and one reviewing insurance statistics [CAMEL07]. It was the conclusion of the Georgia occupational regulatory review of massage [GA97], the West Virginia Joint Committee review [WV03], and the British Columbia Health Professions Council [BC99]. The inherent safety of massage has allowed the lack of clear training outcomes to pass with little consequence to the public, other than indirectly through unnecessary costs and lost time to students [COXFOS90].

Unfortunately, neither in SB731 nor yet (an effort is in progress) in evidence-based guidelines for massage best practices will you find a clear statement of outcomes such as these examples [subsequent to this letter, a Massage Competency Definition Library (MCDL) has been started, 2007-05-05]:

Can demonstrate working knowledge of universal precautions

Can demonstrate working knowledge of blood borne pathogens, their means of transmission, and relative rates of virulence.

Can demonstrate working knowledge of the symptoms of deep vein thrombosis and the appropriate response.

Can demonstrate working knowledge of the symptoms of a stroke or heart attack and of the appropriate response.

Can demonstrate working knowledge of the possibility of a 'spontaneous' cerebral arterial dissection, symptoms, and appropriate response.

Why are we increasing training hours without clear outcomes and clear public benefits? Are we simply playing a game of gentrification?

Massage practice in California has a substantial history of being a micro-enterprise, providing simultaneously a caring livelihood and a means of economic self-betterment. This closely matches patterns of economic improvement noted and promoted by the Center for Policy Alternatives[CPA06].

"Of the 20 million Americans who operate microenterprises, 65 percent are women, 55 percent are minorities, and 59 percent are low-income. These small businesses supplement income from low-wage jobs or create jobs when workers become unemployed. For many low-income Americans, a microenterprise is the most effective way to support their families."

California massage training has been able to promote such economic self-improvement because most schools in California have historically offered focused programs that have allowed modular, pay-as-you-go training. These programs have initially taught essential skills to take a person into practice and then supported further training to extend practice into new contexts and clientele [GRFOR04]. Such incremental change into a new career has been found to have a solid business basis [IBARRA03]

"Resist the temptation to start by making a big decision that will change everything in one fell swoop. Use a strategy of small wins, in which incremental gains lead you to more profound changes in the basic assumptions that define your work and life. Accept the crooked path. Small steps lead to big changes, so don't waste time, energy, and money on finding the "answer" or the "lever" that, when pushed, will have dramatic effects. Almost no one gets change right on the first try. Forget about moving in a straight line. You will probably have to cycle through a few times, letting what you learn inform the next cycle. You will know that you are learning at a deeper level when you start to question what aspects of your life apart from your job also need changing."

Eliminating a working business model for massage training is simply not a good idea. This is particularly true when the existing model fits well with 21st century business concepts of efficient training, when the proposed replacement model costs students hundreds of extra hours of time from family and community, and when the proposed model costs students thousands of pre-practice dollars without defining any universal training outcomes.

If anything, rather than phasing out the 250 hour tier, it makes far more sense to hold the 500 hour tier in abeyance until it is associated with clearly defined training outcomes and experience levels. The higher title should come as a reward for meeting additional, clearly defined outcomes of specific training and experience, not for vaguely defined hours in a classroom that no training manager should consider funding [WHIT01].

California deserves better than a bill than raises barriers to entry without guaranteeing clearly-defined improvements in knowledge, skills, and abilities. As Yogi Berra once quipped, "You've got to be very careful if you don't know where you're going, because you might not get there." Passing a training facade requirement is "not getting there" for the people of California. It is contrary to both professional improvement and economic development.

Finally, I wish to note in closing, that any requirement of membership or dues paid to a private organization should be undertaken with consideration of federal constitutional protections of freedom of association and freedom of expression. I have recently reviewed court decisions in this area such as Abood v. Detroit Board. of Education and Keller v. State Bar of California [Grant07B]. Unlike with an existing private organization, membership in the proposed state-created MTO should not be problematic, but use of dues could be.

Thank you for your attention to SB 731. Massage practitioners in California do deserve a fairer business environment than currently exists under local regulation [CAMEL07]. Despite SB 577 (Burton, 2001-2002), having defined unlicensed health care practices in California, despite the National Center for Complementary and Alternative Medicine defining massage as a CAM practice [NCCAM06], a number of cities have insisted on regulating massage only as adult entertainment rather than as the combination of personal service and health care it rightfully constitutes [GRANT07A]. The many California massage practitioners deserve more respect for their hard-work and dedication to benefiting their clients.

[BC99] British Columbia Health Professions Council, 1999: Post-Hearing Update of Preliminary Report: Massage Therapists. <http://www.healthservices.gov.bc.ca/leg/hpc/review/part-i/update-massage.html>

[CAMEL07] California Massage Education League, <http://ramblemuse.com/camel/>

[COXFOS90] Cox, Carolyn and Susan Foster, 1992: The Costs and Benefits of Occupational Regulation, Federal Trade Commission, Bureau of Economics. <http://www.ramblemuse.com/articles/cox_foster.pdf>

[CPA06] Center for Policy Alternatives, 2006: Microenterprise Development, <http://www.stateaction.org/issues/issue.cfm/issue/ MicroenterpriseDevelopment.xml>

[FELL85] Fellmeth, Robert C., 1985: A Theory of Regulation: A Platform for State Regulatory Reform, Center for Public Interest Law, <http://www.cpil.org/download/A_Theory_of_Regulation.pdf>

[GA97] Georgia Occupational Regulation Review Council, 1997: Review of Senate Bill 300 Which Proposes to Regulate Massage Therapists. <http://www.ramblemuse.com/articles/ga_opb_masgrev.html>

[GRANT07A] Grant, Keith Eric, 2007: Merging onto the Healthcare Onramp, Massage Today, March issue, <http://www.massagetoday.com/mpacms/mt/article.php?id=13580>

[Grant07B] Grant, Keith Eric, 2007: Constitutional Issues Pertaining to Required Membership and/or Use of Required Fees Prerequisite to Licensing. <http://www.ramblemuse.com/camel/constitutional.html>

[GRFOR04] Grant, Keith Eric, PhD, and Jeffrey Forman, PhD, 2004: Status and Trends in California Massage Education, <http://www.ramblemuse.com/articles/massage_training_trends.pdf>

[IBARRA03] Ibarra, Herminia, 2003: Working Identity - Nine Unconventional Strategies For Reinventing Your Career, <http://hbswk.hbs.edu/archive/3312.html>

[NCCAM06] National Center for Complementary & Alternative Medicine, 2006: Backgrounder: Massage Therapy as CAM, <http://nccam.nih.gov/health/massage/>

[WHIT01] Whitmore, Paul G., 2001: How to Make Smart Decisions About Training. In the excerpt chapter, Whitmore lists nine criteria for a well-defined training. <http://www.cepworldwide.com/pdf/STD01final.pdf>

[WV03] West Virginia Joint Committee on Government Operations, 2003: Regulatory Board Evaluation: Massage Therapy Licensure Board. <http://www.legis.state.wv.us/Joint/PERD/perdrep/MassTher_1_2003.pdf>

 

04 March 2007

CA Legislation - SB 731 follows in the Wake of SB 412

In late February, SB 731 was introduced by Senator Jenny Oropeza. As an Assemblywoman last session, Oropeza had been the spokesperson in the Assembly for former Senator Liz Figueroa's SB 412 (2005-2006), so her continuing connection with massage legislation isn't surprising. At first glance, SB 731 appears largely the same as SB 412, but we'll be taking a much closer look in days to come at the specific language.

AMTA-CA announced that they have a new lobbyists for the 2007-2008 session, Mark Rakich, their former lobbyist, having taken a state position. The new lobbyists are John Lovell and Steven Lindsay. Lovell and Lindsay have previously worked together with the California Association of Health Underwriters (CAHU).

A final twist to the entire picture of legislation in CA is that the Bureau for Private Postsecondary & Vocational Education (BPPVE) is scheduled to sunset the end of June. This isn't just a massage school issue. A number of language changes that I did already note in SB 731 had to do with following words like "approved by the BPPVE" with the phrase "prior to July 1, 2007".

Massage Bills Introduced in IN, OK, and TX

Massage regulation bills have also been introduced in Indiana, Oklahoma, and Texas. In Indiana, there are two bills, SB 469 for licensing and SB 320 for state certification. SB 320, authored by Patricia Miller is the more likely, since she controls the key committee that his killed past licensing bills. In Oklahoma, the active bill is SB 1035. In Texas, the bill is HB 1883.

These bills are not without substantial problems. For example, the IN bill is attempting to mandate private certifications, which if done carelessly could run afoul of the First Amendment. The OK bill has a residency requirement for licensing which, by Shapiro v. Thompson, 394 U.S. 618 (1969) and New Hampshire v. Piper, 470 U.S. 274 (1985); likely violates the due process clause of the Fifth Amendment and/or the privileges and immunities clause of the Constitution.

First Amendment Issues in Massage Regulation

One of the projects that has taken my time away from blogging in the recent past has been writing a white paper on the implications of First Amendment issues of freedom of association and freedom of expression for state and local agency regulation of massage therapy. The bottom line appears to be that requiring membership in an private organization as a prerequisite to licensing violates the implied freedom not to associate. This would include requiring current certification, since that is managed as a membership, including the right to vote for board members. Requiring a specific exam is workable, but it appears necessary for the mandating agency to ensure that applicants are informed of the amount of fees used for political and ideological expression and be given an opportunity to opt-out of this portion of fees.

I got a link-back to my white paper from Michael Cohen on his CAM Law Blog . Cohen provides some interesting background on the holistic medical practices of Dent that were ended by the court decision of Dent v. WV (1889).

MPS Entries for May 2006 through December 2006 Archived

My MPS entries for May 2006 through December 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

 

Copyright by Keith Eric Grant — The RamblemuseSM — Last revised Tue 27 May 2008

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