FIRST THINGS FIRST
Consumer Protection Agencies have never lobbied for state regulation of massage to protect the public from harm. Special interest groups promote regulation because they benefit from it.
So many human problems begin with someone saving someone else from something from which he hasn't been asked to be saved. - Glen Doman
The usual arguments for licensure, and in particular the paternalistic arguments for licensure, are satisfied almost completely by certification alone. If the argument is that we are too ignorant to judge good practitioners, all that is needed is to make the relevant information available. If, in full knowledge, we still want to go to someone who is not certified, that is our business. - Milton Freedman
A. Schatz has been doing research on state regulation of massage since 1987. He and his colleagues have published many articles and letters to editors on state massage laws, local massage ordinances, national certification, the issue of harm, prostitution, and what is happening in different states..
We apply the term massage therapist to all who do massage, regardless of their training and whether they are or are not regulated, because there is no well-documented evidence that supposedly inadequately trained massage therapists have harmed people and that state regulation protects the public from that harm.
By regulation, we mean Practice (Licensure) Acts and Title Protection Acts which apply to massage therapists. The need for regulation, with which this report is concerned is the alleged need to protect the public from harm by supposedly inadequately trained massage therapists.
"To" regulate "or not to" regulate.
"That is the question."
To adequately evaluate the need for regulation, it is necessary to have well-documented case histories of harm which has actually occurred, and from which definitive conclusions can be drawn. This is basic epidemiology. Anecdotal reports of harm, for which the cause has not been definitively established, are inconclusive; and are no substitute for well-documented case histories.
It is necessary to know how many massage therapists have caused how much well-documented harm to how many people, how serious the injuries have been, and what training and experience the massage therapists had. The term little or no harm refers to this kind of well-documented harm.
To decide whether regulation could provide protection, if it were needed, it is necessary to know how much of the above-mentioned harm has actually occurred in states which have and do not have regulation. If there is no such harm, (a) regulation is not needed; and (b) it is impossible to know whether regulation could provide protection, if it were needed.
MINNESOTA DOES NOT
NEED HOUSE BILL 658 TO REGULATE MASSAGE THERAPISTS BECAUSE THEY DON'T HARM PEOPLE
WHY MINNESOTA HOUSE BILL 685
Regulation threatens people's
Many massage therapists oppose regulation because it tells them:
1. They are inadequately trained to do what they have been doing for many years without harming anybody.
2. They will have to spend considerable amounts of money and time in order to learn to adequately do what so many of their clients have been so satisfied with for so many years.
Proponents of regulation have not
justified the need for regulation
"On December 5, 1998, the Ad Hoc Coalition for Fair Legislation hosted a panel discussion at St. Catherine's college surrounding the question of regulating the massage industry.
"The panel was comprised of proponents and opponents of regulation. The Minnesota Natural Health Coalition was represented as opposing regulation. The Minnesota Touch Movement Network opposes regulation as exclusive and elitist.
"The audience of mostly massage practitioners had many questions for the panel. Some thought regulation was inevitable but many opposed it. The biggest question is, "Why?" Proponents of registration stated that it would be to protect the consumer and separate practitioners from prostitutes in the eyes of the public and government officials by elevating the profession and giving massage credibility.
"No documentation of what the consumer would be protected from was shared. The claims of harm remain undocumented - not only locally but nationally as well."
MASSAGE IS NOT HARMFUL.
IT IS ONLY POTENTIALLY HARMFUL
There is no need for regulation to protect the public from potential harm because potential harm, as such, does not harm people.
Potential harm is harm that may or may not occur. Actual harm is harm that has actually occurred. Things that have actually caused harm are actually harmful.
Many things, which we are frequently do, are potentially harmful. The list includes living, eating food, breathing, air, drinking water, sleeping, being in a house, driving a car, taking a walk, going on vacation, visiting a friend, etc. All these things are potentially harmful because they may result in harm, or they may not.
They are also harmful because they have actually harmed people. Many people have been seriously harmed, and some have died while they were doing these things.
Massage is unique because so many people have so many potentially harmful contraindi-cations, but there have been so little if any well-documented case histories of harm that has actually occurred as a result of massage.
Risk of harm
Risk of harm is determined by harm that has actually occurred, not by potential harm.
Epidemiology reports morbidity data as well-documented actual harm, not potential harm.
Professional liability insurance premiums are based on risk that is determined by well-documented actual harm, not potential harm.
Personal injury claims have to be based on well-documented actual harm, not potential harm.
WHEN GOVERNMENT AGENCIES DID THEIR
OWN RESEARCH, THEY FOUND NO HARM
AND DID NOT REGULATE MASSAGE
This happened in Georgia and the Canadian Province of Quebec
When the Georgia AMTA Chapter promoted licensure, it did not present any acceptable evidence of harm that had actually occurred, The senators therefore disregarded that evidence, did their own research, and concluded:
"There is no documented danger of actual harm to the public."
"The potential for harm to the public appears to be remote and would not be alleviated by licensing."
The Georgia legislative committee also sought evidence of harm in neighboring states, and reported:
The nature of complaints most often cited was "practicing without a license; and sexual misconduct." Only one state reported receiving one complaint that a therapist had injured a client. That report indicates that one case of harm occurred in an estimated 19,240.000 massages in Georgia and the surrounding states.
Thomas J. Mulcair, President of the government Office des professions of the Province of Quebec, wrote to Schatz, on June 13, 1993, to explain why that Province did not regulate massage. His letter reads as follows:
"We are in receipt of your letter dated May 10th, l993, concerning massage therapy.
"I would like to inform you that in the Province of Quebec, the title and the activities of massage therapists are not regulated.
"The Office des professions conducted, in l990 and l99l, an extensive research project on the need to regulate alternative professions in Quebec. A part of the study covered manual therapies and massage.
"One of the main recommendations is that it is not necessary to regulate alternative therapies, including massage therapy, because they do not represent any serious risk of harm to the public.
"This recommendation is based on the fact that none of the 38 groups that we consulted specifically on manual therapies was able to demonstrate or document any prejudice or damage caused by incompetent massage therapists."
THERE'S NO HARM IN THE
Some 85,000 massage therapists give about 85,000.000 massages annually in the U.S. If harm occurrs once in every 100,000 massages, that amounts to 850 people harmed annually, which is 16 cases of harm per state per year. If this harm involves soft tissue, how serious a problem is it?
So many massage therapists with so many kinds of training have massaged so many people with so many contraindications so many times for so many years with so many benefits reported in so many publications, but with so few, if any, well-documented cases of harm.
House Bill 1516, to regulate massage therapists, has an Emergency Clause which reads: "It is hereby found and determined by the Eighty-second General Assembly that this act is necessary ... for the better protection of the public" and "for the preservation of the public peace, health, and safety." The bill is therefore allegedly needed, on an emergency basis, to better protect the public from harm.
The phrase "for the better protection of the public," in the preceding statement, implies that the public is already being well-protected but, because of some "emergency," the public now requires "better protection."
What is this emergency? What created the emergency need to regulate massage therapists for "the better protection of the public and for the preservation of the public peace, health, and safety"? If massage therapists have caused harm in Arkansas, how many massage therapists have harmed how many people, and how serious were the injuries? If there are no adequate answers to these questions, there's no need for House Bill 1516.
The Arkansas State Medical Board is unaware of any such emergency, and does not consider massage therapy harmful. The State Board of Medicine exempts massage therapists.
The California legislature's Sunrise Process requires all proposed regulatory legislation for health care professions to meet the following criteria:
1. The unlicensed profession is a serious danger to the public health and safety.
2. State licensing will adequately protect the public health and safety.
3. No other means can protect the public health and safety.
The California Coalition on Somatic Practices reported: "We injure very few clients. As a result ... we will have difficulty meeting the Sunrise criteria without manipulation of the data."
The Coalition refused to falsify data to meet the legislative requirement for evidence that unlicensed massage practitioners endanger the public.
Over a six year period, there were no reports of harm caused by unlicensed people doing massage. Two reports of alleged harm by licenses massage therapists averaged 2 ÷ 6 = 0.33 or 1/3 of a complaint annually. This amounts to one complaint every three years, and 33 complaints of harm in a century.
"Harm" popped up in Pennsylvania when the Pennsylvania Licensure Coalition promoted state licensure. The Coalition alleged:
"Licensure is first and foremost to protect the public from harm."
"State licensing will ... create educational requirements for that public protection."
"We are working to create a bill which protects the public from harm."
The Coalition did not reply to several requests for information about what harm had actually occurred. We therefore conclude that little, if any, harm has occurred in Pennsylvania.
Connecticut, New Hampshire, Rhode Island, Washington, and Texas
In 1993, Schatz received letters from government officials, in the above-mentioned six states, who reported that they were unaware of any complaints of harm caused by massage therapists.
Additional evidence that massage does not cause harm
Contraindications are conditions which predispose to harm when people are massaged inappropriately. However, there is no well-documented evidence that harm occurs more frequently in people with contraindications than without.
R. Werner and B. E. Benjamin's book A Message Therapist's Guide to Pathology is replete with information about so many potentially harmful contrandications. But the book does not have many well-documented case histories of harm that has actually occurred, as one might expect.
The National Certification Examination devotes very little content to contraindicatons. Because there are so many unregulated massage therapits and so little if any well-documented harm, there's no well-documented evidence that National Certification, school accreditation, or any particular training contributes to or is responsible in any way for the safety of massage.
THERE'S NO HARM IN CANADA
There's no harm in the
Province of Ontario
On July 13, 1993, Schatz wrote Deborah Worrad, Registrar of The Board of Directors of Masseurs in Toronto, Ontario:
"We are particularly interested in obtaining research reports or other information which indicates that laws which require credentialing of massage therapists result in more competent massage therapists" and/or "protect the public."
Her reply of July 26, 1993, stated: "The Board has not conducted specific research and therefore does not have hard data on the topics to which you referred."
On August 24, 1998, Margaret Anne McHugh (Executive Coordinator, Health Professions Regulatory Advisory Council in Toronto, Ontario) wrote Lincoln Lau (President of the British Columbia Coalition of Allied Bodywork Practitioners): "We are not aware of any such complaints" of harm caused by massage "by the public."
On August 26, 1998, Allan R. Burrows (Director, Ministry of Health, Professional Relations Branch in North York, Ontario) wrote Lincoln Lau: "The Ministry of Health has not received any letters from the public complaining against massage therapists or other massage practitioners."
In the Sep/Oct, 1998, issue of Massage Magazine, Elizabeth Leach claimed that ,"Massage therapy by unregulated individuals is not" safe. But she has not provided any evidence of well-documented harm that had actually occurred. Her allegation is therefore unjustified.
In October and November of 1998, Schatz wrote to Elizabeth Leach, Executive Director of the Ontario Massage Therapist Association, and Melanie Romanoski, Editor of the Ontario Massage Therapist Newsletter, and asked them for well-documented evidence of harm that had actually occurred. Neither of them has replied.
Ontario's Title Protection Act is
prima facie evidence that
massage is safe
Ontario's Title Protection Act permits massage practitioners, regardless of their training, to do massage and also use the word massage in advertising, provided only that they not call themselves massage therapists. The title "massage therapist" may be used only by licensed massage therapists.
The fact that Ontario has permitted unlicensed massage practitioners to do massage for so many years is convincing evidence that they have caused little if any harm. For this reason, Ontario's Title Protection Act is prima facie evidence that unregulated (unlicensed) massage practitioners have not harmed their clients.
Because the purpose of Ontario's title pro- section (pages 10-11) is to control "potentially dangerous acts," it has an internal contradiction:
1. The Act obviously does not consider that unlicensed massage practitioners, regardless of their training, are potentially dangerous - which is why it permits anybody to do massage.
2. Therefore, why does the same Act require others to take a 2,200-hour training and be licensed massage therapists - so they won't be potentially dangerous?
Be that as it may, if there is no harm from which title protection acts are needed to protect the public, there is no harm from which practice acts are needed to protect the public. Thus, there is no need for any state regulation of message therapists to protect the public from being harmed by any massage therapists.
Ontario's regulation makes no sense
in terms of protecting the
public from harm
Question: Since there's no harm in Quebec, why should there be any harm in the neighboring province of Ontario?
Answer: Quebec did research, found that harm had not actually occurred, and did not regulate massage. Ontario did not do research, assumed there was sufficient harm, and regulated massage therapists to protect the public from harm that had not actually occurred.
The College of Massage Therapists in British Columbia has been attempting to change the Title Protection Act in that Province, which is similar to that in Ontario, to a Practice Act which would prohibit all unregistered massage practitioners from doing massage.
In British Columbia, there are a few reports of harm which were described as anecdotal. "Anecdotal" means the cause has not been established. Webster's dictionary defines an anecdote as "a short narrative of an interesting, amusing, or biographical incident." Anecdotal evidence of harm is no substitute for well-documented medical case histories of harm that has actually occurred.
Alberta, Sasketchewan, Manitoba,
New Brunswick, Nova Scotia, Prince
Edward Island, Newfoundland
Lincoln Lau (President of the British Columbia Coalition of Allied Bodywork Practitioners) received letters from government officials who reported no complaints of harm in the above-mentioned provinces.
THERE'S NO HARM ANY-
If unlicensed massage practitioners haven't caused well-documented harm in the United States and Canada, it's unlikely that they have caused well-documented harm anywhere else This is precisely what Alexander's Medline survey revealed.
Alexander concluded, from his 1992 Medline survey: "The small number of references" to harm "suggests the relative safety of massage." He reported that research in 1992 in the Ontario Massage Therapist Newsletter.
He found no evidence that any contrain- dication was associated with harm caused by a massage therapist, regulated or unregulated, in Ontario or anywhere else.
Nor did he find a single case of any other kind of harm caused by a massage therapist, regulated or unregulated. This is significant because many or most massage therapists - in the United States, Ontario, and other Canadian provinces during the 30-year period (1967-1992) Alexander surveyed - were unregulated.
"The one case" he "found that relates" only "relatively directly to a group such as massage therapists is a report from a phsysiotherapist of a hypersensitive reaction to ice massage."
Alexander uncovered only 30 cases of harm reported over a period of 25 years. This averages out to 1.2 people harmed in one year, and 120 people harmed in a century. None of the people who caused the harm were massage therapists, regulated or unregulated.
Finally,, Alexander, in Ontario, told Massage Magazine last fall: "Massage and bodywork are safe. There have never been any cases of physical injury to people." Alexander is editor of The Journal of Soft Tissue Manipulation which is published in Ontario. He is also a Contributing Writer for the Massage Therapy Journal.
HOUSE BILL 685 DOES NOT COMPLY WITH RELEVANT LAWS?
DOES HOUSE BILL 685 COMPLY WITH MINNESOTA'S SUNRISE ACT?
Chapter 214. Policy and regulation 214.001. includes Subdivision 2. of 214.001, which reads as follows:
"Criteria for regulation. The legislature declares that no regulation shall be imposed upon any occupation unless required for the safety and well being of the citizens of the state. In evaluating whether an occupation shall be regulated, the following factors shall be considered:
"(a) Whether the unregulated practice of an occupation may harm or endanger the health, safety and welfare of citizens of the state and whether the potential for harm is recognizable and not REMOTE..."
In the absence of well-documented evidence of harm that has actually occurred, "THE POTENTIAL FOR HARM IS" ... "REMOTE."
Consequently, House Bill 685 is NOT NEEDED to protect the public from harm.
We have already reported (on page 3) that a Georgia Senate Committee, which did its own research, concluded:
"There is no documented danger of actual harm to the public."
"The potential for harm to the public appears to be REMOTE and would not be alleviated by licensing."
FOR THESE REASONS, GEORGIA HAS NOT REGULATED MASSAGE THERAPISTS.
CONSTITUTIONAL LAW, U.S.
SUPREME COURT DECISIONS, AND THE
UNITED NATION'S INTERNATIONAL
BILL OF HUMAN RIGHTS?
It seems that proponents of licensing are hopeful that a state license would mean more money, status, and power. - Jerry A. Green, Attorney for the California Coalition on Somatic Practices
I think the move toward licensure is regrettable. I believe licensing creates state-sanctioned monopolies ... with the explicit goal of 'protecting the public,' but with the real effect of protecting those who hold the monopolies' respective entitlements, reducing information to the public, and restricting competition. - Don Schwartz,
If massage therapists are regulated without sufficient well-documented evidence which justifies regulation, the regulation may violate:
1. constitutional law and U.S. Supreme Court decisions which protect freedom of speech and freedom of the press; and prohibit inappropriate governmental interference in lawful business, discrimination, restraint of trade, monopolies and unfair trade practices.
2. the United Nations' International Bill of Human Rights' provision of the right to work.
How these laws and the United Nations' International Bill of Human Rights may apply to state and local regulation of massage therapists is discussed in the Massage Law Newsletter 4(3):1-6.1998. This and other reports on regulation are on our website http://www.tiac.net/users/maryella/>. We cannot reprint all that information here.
THE WORD MASSAGE IS A
Does state regulation of massage, which prohibits unregulated massage practitioners from using the word massage violate constitutional law, U.S. Supreme Court decisions, and the United Nations' International Bill of Human Rights?
"Generic" means "relating to or characteristic of a whole group or class," and "being or having a non-proprietary name." Non-proprietary means that no one can have the exclusive right, ownership, or use of a name or title. Conversely, proprietary refers to "the legal right, ownership (possession) or the exclusive" use of a name or title.
There is no well-documented evidence that the unrestricted use of the generic term massage by unregulated practitioners has adversely affected the public health, welfare, safety, morals, and/or order to a significantly serious extent that justifies restricting the use of that term.
Therefore, on what grounds can state regulation of massage justifiably prohibit people (who are not regulated) from using the generic term massage to describe, in advertising and in other ways, the massage work they do?
A LEGAL DECISION THAT MASSAGE
IS A GENERIC TERM
Massage, as a generic term, played an important role in litigation in the Supreme Court of British Columbia. This report is in the Fall, 1997, newsletter (Vol. 1, No. 1) published by the British Columbia Coalition of Allied Bodywork Practitioners. #303 - 2164 Wall Street, Vancouver, BC. Canada V5L iB5.
The BC Telephone Company wanted to introduce a new listing category "massage services" in the Yellow Pages to allow manual therapies and massage practitioners that were not Registered Massage Therapists to list and advertise in the Yellow Pages.
The Telephone Company took the position that the word "massage" is a generic term and that not all people who perform an act of massaging should be classified as providing massage therapy.
The College of Massage Therapists objected that "only persons who are allowed under legislative authority to be engaged in providing massage services are those duly registered with the college, and no others."
The Judge, Mr. Justice Braidwood, found "that it is not everyone who provides the service of rubbing another person's body who is properly designated as a massage therapist and that, accordingly, there are two categories and they are properly separated as proposed, namely one being 'massage therapists registered' and the other being 'massage service' ... Accordingly, the application for a permanent injunction is refused.'"
The judge also concluded that people who provide "relaxation or comfort massage" need little if any instruction. He considered that four hours or less training might well be adequate for that purpose.
MASSAGE IS A GENERIC TERM IN THE
AMTA SCOPE OF PRACTICE
The AMTA Committee which defined the Scope of Practice, of its members, took what it called "a broad and generic approach," and "created a generic statement." This generic approach and statement refer to "massage or massage therapy" because "massage or massage therapy" are what the Scope of Practice defines. (Hands On. AMTA newsletter. Vol. 14. Numbers. 3 and 5, May/June and Sept/Oct. 1998).
If massage is a generic term for massage therapists who are members of AMTA, why isn't it also be a generic term for massage therapists who are not members of AMTA?
If the term massage is a generic term, why may it not be raised as an issue in determining the legality of state regulation of massage therapists?
DOES RESTRICTED USE OF THE
GENERIC TERM MASSAGE VIOLATE COMMERCIAL SPEECH?
Mr. Justice Braidwood's decision upheld commercial speech in British Columbia.
U.S. Supreme Court. Ibanez v. Florida Dept. of Bus. & Prof. Reg. 1994 tells us:
"Truthful advertising related to lawful activities is entitled to the protections of the First Amendment... Misleading advertising may be prohibited."
"Only false, deceptive, or misleading commercial speech may be banned." "Commercial speech that is not false, deceptive, or misleading can be restricted, but only if the State shows that the restriction directly and materially advances a substantial state interest in a manner no more extensive than necessary to serve that interest."
"The States's burden is not slight; the free flow of commercial information is valuable enough to justify imposing on would-be regulators the costs of distinguishing the truthful from the false, the helpful from the misleading, and the harmless from the harmful."
"If the 'protections afforded commercial speech are to retain their force' ... we cannot allow rote invocation of the words ''potentially misleading' to supplant the Board's burden to 'demonstrate that the harms it recites are real and that its restriction will in fact alleviate them to a material degree." "Mere speculation or conjecture' will not suffice."
These legal opinions may well apply to the use of the term massage in commercial speech, and that this term may not be restricted merely because massage is alleged to be potentially harmful. The harm must be "real." It must actually have occurred.
Furthermore, if the term massage may be legitimately used in commercial speech because there is only potential harm, how can the practice of massage be prohibited if it is only potentially harmful but does not actually cause any real harm?
WE NEED FREEDOM OF CHOICE FOR CONSUMERS AND FREEDOM TO PRACTICE FOR PRACTITIONERS
Freedom of choice in health care is important because it gives us the right to obtain the treatment we want from the health care providers we choose. But we don't have that freedom unless the health care providers we want have freedom to practice.
We therefore need two freedoms: Freedom of choice forconsumers, and Freedom to practice for practitioners.
The following are declarations of the importance of freedom of choice in health care.
President Dwight D. Eisenhower: Freedom, consent, and individual responsibility are fundamental to our system. In the field of medical care, this means that the traditional relationship of the physician and his patient and the right of the individual to elect freely the manner of his care in illness must be preserved.
U.S. Supreme Court Justice B. N. Cardozo: Every human being of adult years and sound mind has a right to determine what shall be done with his own body.
Andrew Ivy, M.D.: Every human being, regardless of race, color, or creed, has the inalienable right to life and health, and to choose the type of medical care he or she wishes to receive, provided the choice does not interfere directly with the life and health of others.
Dr. Ivy, a world-renowned scientist and physician, was chosen by the allied powers, Great Britain, France, the United States, and the Soviet Union, to investigate the Nazi experiments on humans for the Neurenburg Trials. He concluded that those experiments produced no useful information.
Dr. Benjamin Rush: The Constitution of the Republic should make special provision for Medical Freedom as well as Religious Freedom. To restrict the art of healing to one class of men and deny equal privileges to others will constitute the Bastille of medical science. All such laws are un-American and despotic. They are fragments of monarchy and have no place in a republic.
Dr. Rush was Surgeon General of the Continental Army of the United States and one of the Signers of the Declaration of Independence.
Massage therapists need
freedom to practice
Both massage therapists need to be protected from practice acts and title protection acts which adversely affect them. (See page 2)
Regulation denies some people, especially women, the right to continuing doing massage, which does not cause harm, because they are financially unable to pay the cost of meeting state regulatory requirements. Others have to spend (what may be for them) considerable money annually to meet state requirements which are not needed to protect the public from harm.
Turf wars and border conflicts
Massage therapists also need to be protected from turf wars and border conflicts in which other professions, which consider therapeutic massage to lie in their domain, may try to prevent massage therapists from doing therapeutic massage.
Minnesota House Bill 537, Barbara York's suggested permit system, and voluntary title protection in Ontario, which is self-regulation, adequately protect both the public and massage therapists. It also avoids monopoly control.
ALTERNATIVES FOR HOUSE
BILL 685 THAT REGULATES MASSAGE THERAPISTS
MINNESOTA HOUSE BILL 537 PROVIDES
FREEDOM OF ACCESS TO COMPLEMENTARY AND ALTERNATIVE HEALTH CARE
This bill was introduced on February 2, 1999. It would allow "complementary and alternative health care practitioners to practice in certain circumstances; creating informed consent and notice requirements."
With respect to massage, this bill which is supported by the Minnesota Natural Health Coalition:
1. protects the right of all massage therapists, whether they are licensed or not, to do massage.
2. protects the right of all consumers to choose massage therapists, whether they are licensed or not.
3. protects the safety, health, and welfare or the public.
BARBARA YORK'S SUGGESTION FOR
PERMIT SYSTEM WOULD PROTECT BOTH MAS- SAGE THERAPISTS AND THE PUBLIC
Barbara York is a Jin Shin Jyutsu practitioner, in Minneapolis, who has been in touch therapy since 1983. She is also president of the Minnesota Touch Movement Network. This professional state- wide organization was orginally formed in 1981 as the Minnesota Therapeutic Massage Ne
This suggestion involves a permit system for massage therapists, bodyworkers, touch therapists, and somatic educators. It incorporates many concerns of the (now defunct) Coalition of Touch Therapists and Somatic Educators. This group existed for several years, working on options instead of licensure.
A permit system is the least restrictive form of regulation, with no state requirements for education, experience, or standards of practice. It would require only professional ("malpractice') liability insurance..
The insurance companies already determine education, experience and other requirements, and screen and weed out applicants with prior and pending criminal activity, whether there is a conviction or not. The insurance companies would be responsible to the State Department of Commerce.
No grandparenting would be involved because anyone could obtain a permit at any time (on condition of obtaining professional liability insurance). The state would maintain a list of therapists holding permits and respond only to complaints. The voluntary permit would allow practitioners to obtain a statewide permit which is especially useful if bodyworkers are dealing with licenses in multiple municipalities.
The permit would include all modalities of education. So, for example, a reflexologist could obtain a permit without having to train as a massage therapist in order to meet a municipal requirement. The goal of the bill is inclusivity instead of exclusivity at a high price.
Insurance offers more protection
than state regulation
Insurance protects both the public and massage therapists. If a massage therapist harms a client, insurance protects the massage therapist in a personal injury claim, and provides compensation for the injured client.
State regulation of massage does not prevent injuries, does not protect the massage therapist in a personal injury claim, and does not pay the injured client any compensation. Insurance therefore provides more protection for all concerned than state regulation does.
Because massage is safe, the cost of professional liability insurance for massage therapists has decreased significantly, while the cost of medical malpractice insurance has significantly increased.
In 1984, the wholesale cost of $1,000,000 coverage for massage therapists was $65.00 a year. Now the wholesale cost for $2,00,000 coverage is only $32.50 a year.
The most likely explanation for this significant drop in the cost of professional liability insurance is that insurance companies recognize that massage is not harmful.
If massage were harmful, there would be more and more harm because more and more people are being massaged by more and more massage therapists, regulated and unregulated.. The cost of insurance would therefore increase. But the cost has decreased.
Unfortunately, self-protection has not been seriously considered in the United States. When the alleged need for regulation has been presented to massage therapists, only state title protection and state practice acts have been offered to satisfy the alleged need. Very few massage therapists know that:
1. State regulation is not needed to protect the public from harm or for any other reason.
2. Title protection can be state title protection or self-regulation by means of title protection.
Very few massage therapists in the United States are aware of the self-regulation in Ontario and how it functions.
Self-regulation by title protection
The following information is taken from a letter addressed to Lincoln Lau, President of the British Columbia Coalition of Allied Bodywork Practitioners. Lau had written, on July 20, 1998, to request information about harm, regulation, and other matters.
Alan. R. Burrows, Director. Ministry of Health. Professional Relations Branch. North York, Ontario, replied to Lau on August 26,1998, and provided the following information.
"In Ontario, the profession of massage therapy is regulated by the Regulated Health Professions Act 1991 (RHPA) and the Massage Therapy Act 1991 (the Act)... The RPHA is based on the concept of controlling potentially dangerous acts.
There's no monopoly control
"In fact the RHPA structure is, by policy design, intended to eliminate 'licensed monopolies' in Ontario's health professions. Therefore... 'legislated massage therapists' have not been given a monopoly over massage and manual therapies.
"The Act does, however, provide for title protection by restricting the use of the title 'massage therapist', a variation or abbreviation or an equivalent in another language, to members of the College of Massage Therapists of Ontario (CMTO). The College is the independent regulatory body for massage therapy in Ontario.
"The protected title would not prevent someone from advertising or using the term 'massage' as long as it is not used together with the word 'therapy'. There is also a provision in the Act which prohibits someone from holding themselves out as a person who is qualified to practice in Ontario as a massage therapist or in a specialty of massage therapy if they are not a member of the CMTO."
I have already pointed out that Ontario's title protection makes no sense from the point of view of protecting the public from harm, and why this is so. However, it does effectively protect massage therapists from turf wars and border conflicts.
STATE REGULATION OF MASSAGE
MAKES NO SENSE
THERE'S NO WELL-DOCUMENTED EVIDENCE THAT REGULATION IS NEEDED
If there's no harm from which the public needs to be protected by title protection acts, there's no harm from which the public needs to be protected by practice (licensure) acts.
What is an "adequate training"?
There is no general agreement on what regulatory requirements constitute an "adequate" training to prevent harm because there is no harm, or for any other reason.
State requirements vary from zero (in states which do not relegate massage) to 1,000 hours in Nebraska. Texas requires 250 hours. The city of Tucson, AZ, requires 1,000 hours of training, but the state of Arizona does not regulate massage. Moreover, it has a Sunrise law which requires proponents of state regulation to provide well-documented evidence that regulation is needed to protect the public from harm.
We have already pointed out that in Canada, the Province of Quebec does not regulate message because its two-year research project did not uncover a single case of harm despite the fact that those who do massage vary considerably in their training. Why then does British Columbia require 3,000 hours; and Ontario, 2,200 hours? The rest of the provinces do not regulate massage at all.
`Since there is no need to regulate massage therapists to protect the public from harm or for any other reason, why then are massage therapists regulated?
$$$$ $$$$ $$$$ $$$$
Consumer Protection Agencies have never lobbied for regulation of massage to protect the public from harm.
Regulation has been promoted by special interest groups that benefit from regulation at public expense.
It seems that proponents of licensing are hopeful that a state license would mean more money, status, and power. - Jerry A. Green, Attorney for the California Coalition on Somatic Practices
I think the move toward licensure is regrettable. I believe licensing creates state-sanctioned monopolies ... with the explicit goal of 'protecting the public,' but with the real effect of protecting those who hold the monopolies' respective entitlements, reducing information to the public, and restricting competition. - Don Schwartz, Director of the Trager Institute
State regulation of massage therapists is part of the corporatization, monopolization, and medical modelization which extracts millions of dollars annually from massage therapists.
What is happening is that more and more massage therapists have to pay more and more money annually to comply with regulatory requirements because more and more states are regulating massage.
There is talk about the alleged need for uniform national standards. Why do we need to regulate massage therapists nationally when there's no need for states to regulate them to protect the public from harm or for any other reason?
Why are thousands of massage therapists required to pay millions of dollars annually to comply with unnecessary and unjustified state regulatory requirements that make no sense because massage therapists don't harm people?
Of all tyrannies, a tyranny sincerely exercised for the good of its victims may be the most oppressive. - C. S. Lewis
Experience should teach us to be most on our guard to protect liberty when the ... purposes are beneficial. Men born of freedom are naturally alert to repel invasion of their liberty by evil-minded rulers. The greatest dangers lurk in insidious encroachment by men of zeal, well meaning but without understanding. - U.S. Supreme Court Justice Louis Brandeis
The passion to regulate the lives of others is deep-seated in many individuals. When this is based on political expedience, it is bad, and when it is inspired by an idealism which wishes to inflict benefits on others, it can become dangerous. - Sir Arthur Amies