MLN Vol. 16, No.4

Massage Law Newsletter

Vol. 16, No. 4                      ISSN 1073-5461                        October 2000

ANOTHER CASE OF HARM MISTAKENLY ATTRIBUTED

TO MASSAGE BY THE COLLEGE OF MASSAGE

 THERAPISTS OF BRITISH COLUMBIA

To: Douglas M. McRae, Registrar. College of Mas-sage Therapists of British Columbia (CMTBC)

From: Albert Schatz, Ph.D., Editor

I am writing to request clarification about a report of harm presumably caused by an unregulated massage therapist.  The College of Massage Therapists of British Columbia (CMTBC) submitted the reference to that report to the Health Professions Council (HPC) to support CMTBC's July 28, 1998, Submission "Revising the Scope of Practice of BC's Massage Therapists". 

Walking on a person's back

 is not massage

This harm is in reference 25 on page 9 in CMTBC's July 6, 2000, "Supplementary Response. Further Commentary on the Risk of Harm Associated with the Practice of Massage Therapy." Reference 25 is the report: Mikhail, A., Reidy, J.F.,  Taylor, P.R., and Scoble, J.E. Renal artery embolism after back massage in a patient with aortic occlusion. Nephrology Dialysis Transplantation. 12:797-798. 1997.

This report tells us that "A 59-year-old man was admitted with abdominal pain. Earlier that day he had complained of mild low back pain after lifting a refrigerator.  His wife tried to relieve the pain by massage which involved walking on his back while he was in the prone position. Later that afternoon he experienced severe left loin pain radiating to the groin and vomited twice"

"This  report illustrates a case where renal embolization occurred in the presence of aortic occlusion  but absence of renal stenosis. In view of the temporal association with 'massage' it would appear that ..." Note that the authors word "massage" is in quotation marks

Did anybody at CMTBC actually read this report by Mikhail et al before the reference to this report was included in CMTBC's July 6, 2000, "Supplemental Response"? Has CMTBC informed HPC that the "massage" (in this report) was done by a man's wife walking on his back while he was in the prone position? If not, why not?

If CMTBC's request for an expanded scope of practice were granted, would you please explain how that would protect the public from wives' massaging their husbands by walking on their husband's backs while they are in a prone position? How many such cases of  harm, have occurred in British Columbia in, let us say, the past 10 years?

Rolfing is not therapeutic

massage

I have previously  discussed Reference 26 in CMTBC's July 6, 2000, "Supplementary Submission" to HPC. This reference is: Kerr. H.D. Ureteral stent displacement associated with deep massage. Wisconsin Medical Journal. 96:57-58. 1997. In this report, the author mistakenly identified Rolfing as "therapeutic massage."1  Has CMTBC notified the Health Professions Council that Rolfing is a deep muscle therapy modality but that it is not "therapeutic massage" in the sense in which this term is generally used?  If not, why not?

Peter Behr's testimony 

about harm

I have also already discussed Peter Behr's  testimony about serious harm (which he associated with massage) at HPC's June, 1999, hearing.2

Behr was President of CMTBC, and should therefore know what he was talking about. However, to take Behr's testimony about that harm seriously, one has to put one's intelligence in a state of suspended animation. It is therefore not surprising that Behr has not replied to repeated requests for well-documented evidence which validates his above-mentioned allegations of harm. Has CMTBC notified HPC that CMTBC has dissociated itself from Behr's allegations of undocumented harm? If why not.

Please give me permission to publish your reply to this letter in the Massage Law Newsletter.

Thank you.

cc: Mary McCrea, Health Professions Council

     David MacAulay, Health Professions  Council

     Mr. Lincoln Lau, British Columbia Coalition of Allied Bodywork Practitioners

     Mr. Peter Behr

References

1. Schatz, A. Has the College of Massage Therapists of British Columbia provided misleading information the Health Professions Council? Massage Law Newsletter. 15(2):1-2. 2000.

2. Why doesn't Peter Behr (Past president of the College of Massage Therapists of British Columbia) document his allegations of serious harm associated with massage therapists in British Columbia and Alberta? Massage Law Newsletter. 16(2):1-3. 2000.

SOME EARLY HISTORY OF STATE REGULATION

OF MASSAGE THERAPISTS IN CONNECTITUT

 STANLEY PECK'S 1992 TESTIMONY AT A HEARING

 ON SENATE BILL 71, CONCERNING LICENSURE

OF MASSAGE THERAPISTS.

Mary Brewster

The history of state regulation of massage has yet to be written. Unfortunately much of that history, which consists of what opponents of regulation have done in different states, has already been irretrievably lost.

One of the functions of the Massage Law Newsletter is to preserve at least some of that history as it has played out in different states. Many reports in this Newsletter were written during the struggle against state regulation.

State documents may still be available. The following testimony is interesting because it was presented by a state official who was opposed to regulation in Connecticut.

March 3, 1992

PUBLIC HEALTH

10:00 a.m.

PRESIDING CHAIRMEN: Senator Matthews. Representative Dillon

COMMITTEE MEMBERS PRESENT:

SENATORS:  Gunther

REPRESENTATIVES:  Gyle, Fritz, Betkoski,

Cocco, Dandrow, Del Bianco, Fahrbach, Grabarz,

Holbrook, Loffredo, Metsopoulos, Moynihan,

Schiessl, Wasserman, Winkler

SENATOR MATTHEWS: I believe Representative Del Biancoia here, Representative Dandrow and we'll tell you who is present as they come. Thank you.

STANLEY PECK: My name is Stanley Peck. I'm the director of the Division of Medical Quality Assurance in the Department of Health Services. I'm here this morning to speak on SB 71, An ACT Concerning Licensure of Massage Therapists

The Department of Health Services opposed SB 71. This bill would mandate the licensure of massage therapists by the Department. Our agency does not perceive the need to regulate the practice of massage therapy and does not believe that such regulation will contribute in a meaningful way to protect the health, safety and welfare of Connecticut's citizenry.

Several years ago, the Legislature mandated in A88-62 that the Department implement a certification program for massage therapists. At that time, the Department opposed creation of a regulatory program in this field. The appropriation that accompanied the public act became part of the agency's mandated budget reduction and the program was never implemented. This legislation now stands as one of 19 unimplemented, unfunded agency mandates that were recommended for repeal in the l991 Thomas Commission Report.

Potential risks associated with the practice of massage therapy have not been convincingly articulated to date, and the Department has noted an absence of consumer complaints related to this activity.

Massage therapy is regulated in a minority of states, with only 15 having seen fit to enact a licensure or certification program for massage therapists, as I understand it.

The scope of practice of massage therapists is not adequately defined in the legislation. The language is unduly vague and sufficiently broad to encompass treatments presently provided by licensed, other licensed health professionals such as physicians, osteopaths, chiropractors, physical therapists, podiatrists and naturopaths.

Since there are already licensed providers who can deliver these services, it is clear what benefit the consumer would derive from creating an additional seemingly superfluous regulated group. Although massage therapists would be precluded from performing diagnosis, there is no requirement in the bill that potential clients in fact receive necessary diagnostic services. Physical therapists who hold baccalaureate or post-baccalaureate level education, may currently provide treatment only upon referral by a qualified healing arts practitioner such as a physician.

The legislation before you would allow individuals with only 500 hours of education to provide therapy without the requirement for diagnosis and referral. .This situation could place the client at risk since a condition requiring medical intervention could remain undiagnosed.

The credentialling mechanism as proposed in the bill is woefully inadequate. This bill seeks to further dilute the credentials that were established in the original legislation. Whereas, the current statute requires individuals to complete both an educational program and a qualifying examination.

The bill before you would allow individuals to become licensed solely on the basis of their eduction, without an examination, or alternatively, solely on the basis of examination without any formal education.

This scheme is completely inconsistent with the system by which the Department assures the competency of individuals in each of the 33 health professions that are currently regulated. Educational requirements insure that individuals have complete a structured systematic process of exposure to the required base of professional knowledge, skills and abilities.

The exam requirement provides a mechanism to ~objectively assess whether an individual has in ~'fact, acquired and consolidated those professional skill as required for safe and effective practice. A credentialling system which does not encompass both ~education and examination is simply inadequate. ~Another concern with the credentialling mechanism is the requirement that curricula of educational -5 program be approved by the American Massage Therapy Association. While it is appropriate to provide a quality assurance mechanism for educational programs, the Department's practice is to rely on professional accrediting agencies that have been recognized by the United States Department of Education as meeting certain minimal standards.

The American Massage Therapy Association has not  sought recognition as an accrediting body and accordingly, there is no assurance that its approval activities are carried out in compliance with appropriate quality control standards. Lastly, the Department must note that there would be fiscal implications associated with implementation of a new licensure program. To undertake a new program and its associated costs is inappropriate at a time when the State budgetary situation calls for the utmost fiscal constraint.

Other critical public health programs and priorities of the Department, such as maternal, infant death, infections diseases and AIDS, child immunizations and lead poisoning prevention have  compelling needs for resources over and above what is currently available. Our accountability to control the costs of State government demands that we prioritize our programs and allocate our resources in strict accordance with those priorities. At this time, the regulation of massage therapists is simply not among the priorities that are appropriately addressed in this time of scarce resources. In conclusion, the Department would strongly ask that you report unfavorably on this bill.

SEN. MATTHEWS : Is that all, Mr. Peck? Were you speaking to any other bill?

STANLEY PECK: I 'm only speaking on this particular bill today.

SEN. MATTHEWS : I have a few questions. (Inaudible) It's not necessary that you answer them at this time, but I would be interested in knowing if the educational and the exam requirements were in the bill, would that make it more acceptable?

Also, in other states, do they, have they had approval from the Department of Education and thirdly, what would the cost be to the Department to certify this discipline and I guess I thought of a fourth one, I think the question that the massage

therapists have is that they are, and something that follows them wherever they go, and that is that they are continually being categorized as people who are in massage parlors and so their feeling is that they are not that type of discipline and they would like to be able to be certified as they are in some states, simply to show that it's a model that is a legitimate one and not one that would be illegal or beyond the scope.

So, I don't think you would have time to respond to those things, but I pose them as questions.

STANLEY PECK: I could reply to the ones that I know the answers to. With regard to the educational component and the exam component, I would have to say that any licensure program, as I said in my testimony, should incorporate both. ~his provides, sets them forth in the alternative. Therefore, the answer to your question is, would it be a better bill if it was not in the alternative, but it was as originally set forth in the certification legislation. The answer is obviously, yes. That doesn't necessarily remove the Department's objection to it, but it does make it a better bill.

As far as other states and whether they rely on you know, how they exactly and precisely go about doing the credentialling, I don't know the answer to that but I will find out for you. The costs we've not developed, but we certainly will.

With regard to what I sense is very significant, perhaps the most significant issue behind this proposal, and that is the stigma associated with unsavory practitioners in the field. What I would suggest is, that certification from the National Association, while somewhat inadequate from our perspective for the purposes of licensure, could very well serve as the means for this particular group to distinguish itself from people who are not you know, credentialed appropriate practitioners.

We do rely on certification from outside professional organizations, private professional organizations and other professions. And it does serve, and the people in those professions do hold themselves out as being both certified by the State of Connecticut as well as certified by the professional association that they are a member of.

So I would offer that as the suggestion, as a way of setting these people aside or apart from those people who are not, shall we say, as well trained and as well intentioned in their practice. And say to you that if that is the primary reason or initiating legislation, that you've solved an awful big part of the problem, by just saying, OK, if you are a member of the American Massage Therapists' Association, then hold yourself out as such and make a point of doing so and make a point of mentioning, and pointing out, that that separates and distinguishes you from the people who are not.

You don't necessarily need to put a whole new program of regulation on the books to accomplish just that much, particularly since the legislation relies on certification from that very same body.

Our concerns about it notwithstanding, that's what the legislation relies upon, so obviously the people who are behind this piece of legislation hold that body in high regard and hold themselves out, already as being members of it, where they are.

SEN. MATTHEWS: Alright. Thank you, Mr. Peck. Any other comments? Senator Gunther.

SEN. GUNTHER: By your own admission that we have PA88-362 on the books now, we never have promulgated regulations on that, have we?

STANLEY PECK: There wasn't need to promulgate regulations, Senator. We simply did not implement it because the funding for it became part of the agency's reduced budget. It was never implemented. It could be implemented without regulations.

SEN. GUNTHER: Beside that point, whether we need regulation to take and fully control the area, you have a law that's been passed in this State by implementing it.

STANLEY PECK: That's correct.

SEN. GUNTHER: This isn't something that you have a discretion on. This is something that we sit up here and we pass law, and we tell you to do certain things and you don't do them, you know, if that were us out in the public and we passed a law, we'd probably get penalized somewhere along the line for not doing it.

Now, you know, you tell me you don't have enough money, and there's 18 others that you're not doing this with. It's a little bit amazing to hear that, because you know, I can appreciate the budget crunch we have and I can appreciate that they can subsidize the cost of certification or licensure by fees. And it's up to your Department, and I see the Commissioner here, she'll love that, it's up to you to convince them to give you the money to do it.

I don't think we should have to set up a special fund. I don't like to make speeches, but this is a speech committee and -- you know, we've got the longest record, I think, of any group ever trying to get some control is the massage therapists.

And incidentally, I don't know if any one of you, I know that you don't have any background because you don't have the background to know what a scientific system of massage is, or a therapeutic system of massage is. You're a lawyer.

STANLEY PECK: Unfortunately, yes.

SEN. GUNTHER: And I know your predecessor, we had, and I know we haven't had any experience with Commissioner Addiss yet, but your predecessors didn't know what the hell they were doing with it and I know Lloyd was void of any background whatsoever, because of the regulation that he tried to promulgate.

But somewhere along the line when you say you don't get complaints, come out into the public where you have people going up and down complaining like hell about massage, masseuse and masseurs or whores and prostitutes and that type of thing.

SEN. MATTHEWS: Doc, Doc.

SEN. GUNTHER: Well, I've gone too far. Well, whore is an unused name, is it? We don't do that? But, let me tell you there's a lot of trouble out there, and part of their trouble, and I have great empathy for these people who advertise and say that they are board certified and that type of thing that are up all night answering the telephone that somebody wants service in a hotel room.

And I think there has to be some way to take and get some control, because the abuse is both to these people and also to the general public because anybody can open up a shop and go to work and be nothing but a rub artist, with no more background than that, even if it is supposed to be a massage.

So somewhere along the line we ought to be able to do something, because I do think it's in the protection of the people of the State of Connecticut and also the people who are practicing their art.

STANLEY PECK: Well, all I can say in response, Senator is that this is one of those moments when I'm glad that I'm not the Commissioner. I would say, would say that the Department, as I mentioned, there are a number of unimplemented mandates. And what that reflects are some of the hard choice that have had to be made, not only in our agency, but all across State government where things that agencies are expected, and in fact mandated to do  in all instances, they simply were unable to do financially. And it's a tough, tough time that we've been living through for the last couple of years. I think we're all aware of that.

This happens to be among those things that the Department did not feel it could implement because it was not among the priorities of the Department and I mentioned those, and I'm not here to argue policy with you, I'm just saying that that is the reason. Perhaps in better fiscal times we wouldn't be here having this discussion, but unfortunately, that's not the case.

SEN. GUNTHER: Even in good times we had the same problem over there. Even in good times. This has been going on for at least 15 to 20 years, and incidentally, Connecticut is the tax state in professions. The income that they get from the taxes, we don't have examining boards and that anymore that merely subsidize by the cost of licensure in this State. We pay a hell of a lot of money in this State far exceeding what their total budget is.

And as far as I'm concerned, you know, this is something that everybody ought to take a damned good look at if you're not getting the money. Or maybe we're over-utilizing you in other areas that you shouldn't be utilized in, alright?

SEN. MATTHEWS: Representative Gyle.

REP. GYLE: I have a question, Stan. Could you please tell me if you did get a complaint from the public, what your procedure would be?

STANLEY PECK: Well -

REP. GYLE: Specifically, for massage therapists.

STANLEY PECK: It depends really on what the nature of the complaint is. If it was, in the absence of a regulatory program, we don't really have jurisdiction, obviously to take away a license or certificate.

I would say that there are probably two categories of complaint. One might be that the complaint concerning the massage therapist would indicate that the person was engaged in the practice of a profession that we already license and therefore, engaged in the unlicensed practice of some particular profession.

Let's say that a massage therapist, we get a complaint that a massage therapist is doing, engaging in activity which constitutes the practice of medicine, or physical therapy, or chiropracting. The laws of our State preclude the unlicensed practice of those professions, so we could investigate for the purpose of possibly issuing a cease and desist order to that individual from the Commissioner's office.

The other possibility could be that we would refer the complaint to the local police department for the purpose of getting them to take action, either based on the statutes that prohibit unlicensed practice of professions, or on statutes that prohibit certain kinds of activities which might fall into other criminal categories.

REP. GYLE: Well, I'm referring specifically to massage therapist, for example, who didn't perform her duties as a massage therapist very well, and I'm not talking about anything (inaudible), I'm just talking about something that she was unskilled in massage therapy, perhaps according to the complaintant. Would you have any procedure whatsoever for dealing with that?

STANLEY PECK: It's an unregulated area based on, the response to your question is that we don't really have any procedure because we have no jurisdiction. If it was criminal activity, we could refer it. If there was some unfair deceptive activity from the point of either billing or you know, some consumer problem, we could refer it to the Department of Consumer Protection.

We basically look to make a referral to whatever appropriate agency we thought could be of some assistance.

REP. GYLE: Well, I have to tell you, quite frankly, I am not surprised you haven't had many complaints because it seems to me that you aren't exactly very clear as to what your answer to that constituent would be and I think that might be a real problem if someone calls your office in that respect, I would be very much afraid that that complaint might be thrown away and I think that's a real issue when it comes to people being able to access their government.

SEN. MATTHEWS: Any other questions? Representative Cocco. We've been joined by Representative Dillon, Representative Loffredo and Representative Fahrbach.

REP. COCCO: Good morning.

STANLEY PECK: Good morning.

REP. COCCO: I hail from Bridgeport and I have to tell you the situation in Bridgeport is so bad that our Common Council had to come up with an ordinance concerning massage parlors, and massage therapists are in support of this because it is so difficult for them to practice their profession within our city when on each main street in the city we have, unfortunately, seen the growth of the massage parlor trade.

I was part of a group of citizens who raided massage parlors and we raided, oh, I would say, four or five massage parlors and it was quite evident to us when we did so, that indeed what was going on inside was certainly not the practice of massage therapy.

So I would agree with Senator Gunther that we have a real problem here and there must be some way for us to address it to protect those people who are legitimately practicing what their profession is.

STANLEY PECK: My response would be that your city has taken the appropriate response, which is to treat this activity as criminal conduct and to proceed accordingly, and that's appropriate to do that at the local level.

SEN. GUNTHER: We ought to put the bill in to Judiciary, I suppose.

SEN. MATTHEWS: Well, there is confusion in people's' minds and that's  what we're trying to clear up here. Any other questions of Mr. Peck? Thank you.

STANLEY PECK: Thank you.

SEN. MATTHEWS: And you will get those answers to me?

STANLEY PECK: Yes, I will.

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