Massage Law Newsletter

  Vol. 7, No. 1                                  ISSN 1073-5461                             March 1999   

MINNESOTA DOES NOT NEED HOUSE BILL 685  TO REGULATE MASSAGE THERAPISTS BECAUSE THEY DON'T HARM PEOPLE

HOUSE BILL 685 DOES NOT COMPLY WITH REVLEVANT LAWS

WE NEED FREEDOM OF CHOICE FOR CONSUMERS AND

 FREEDOM TO PRACTICE FOR PRACTITIONERS

ALTERNATIVES FOR HOUSE BILL 685

STATE REGULATION OF MASSAGE MAKES NO SENSE

Albert Schatz, Barbara York, and Mary Brewster

Philadelphia, PA, Minneapolis, MN, and Somers, CT

House Bill 685 raises the issue of economic justice because it would prohibit massage therapists, who are arbitrarily considered to be inadequately trained, from making a living by continuing to do massage. The Bill is based on the assumption that the public needs to be protected from such practitioners. However, there is no well-documented evidence that massage therapists, regardless of their training, have harmed people.

Since there is no harm, House Bill 685 is not needed to protect the public from harm

We need laws tp provide Freedom of Choice for consumers and Freedom to Practice for practitioners. We also need laws to protect massage therapists from state Practice Acts and Title Protection Acts which adversely affect them.

Alternatives for House Bill 685 are (a) House Bill 537 which provides Freedom of Access to Complementary and Alternative Health Care,(b)Barbara York's suggestion for permit registration which protects both massage therapists and the public; and (c) self-regulation??j

Contents

Minnesota does not need House Bill 685 to regulate massage therapists because they don't harm people

House Bill 685 deos not comply with relevant law

We need Freedom of Choice for consumers and Freedom to Practice for practitioners

Alternatives for House Bill 685

State regulation of massage makes no sense.........................................11

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

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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..

Definitions

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

 IS CONTROVERSIAL

Regulation threatens people's

livelihood

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

Georgia

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.

Quebec

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

UNITED  STATES

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. 

Arkansas

 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.

California

 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.

Hawaii

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.

Pennsylvania

"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.

 British Columbia

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-

WHERE ELSE

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.

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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:

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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.

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

MINNESOTA HOUSE BILL 537 PROVIDES

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.

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.

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STATE REGULATION OF MASSAGE

THERE'S NO WELL-DOCUMENTED EVIDENCE THAT REGULATION IS NEEDED

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.