MLN Vol.21, No.1

Massage Law Newsletter

www.healingandlaw.com

Vol. 21,  No.1                          ISSN 1073-5461                                  June 2001

A LETTER TO

STEVEN C. OLSON, PRESIDENT OF THE AMERICAN

MASSAGE THERAPY ASSOCATIATION (AMTA)

AND

CHERYL A. NEELEY, AMTA GOVERNMENT

RELATIONS STAFF LIAISON

ABOUT

MY UNANSWERED REQUEST TO MARIETTA FLAGG,

PRESIDENT OF THE PENNSYLVANIA CHAPTER OF AMTA

From: Rev. Albert Schatz, Ph.D. President. Church for Spiritual Healing and  Health, and PA-AMTA member 9789

The officers of the PA-AMTA Chapter intend to introduce another bill to regulate massage therapists and  other bodyworkers who want to be included. However, the officers  have made a commitment to "exclude  any modality that does not wish to be a part of the bill."

With this in mind, I first wrote Marietta FlaggPresident of the PA-AMTA Chapter last March.1,2 I requested that the officers of the PA Chapter honor their commitment and exclude Spiritual Massage HealingSM from their bill. I also asked her to let me know whether my request will be granted.

I am concerned because Flagg has not replied to my request that the officers of the PA-AMTA Chapter    exclude Spiritual Massage HealingSM from the bill they plan to introduce. My request is documented in two reports in the Massage Law Newsletter1,2  

These reports are available on the internet <www.healingandlaw.com>. For information about me, click "bios" on this web site.  

I am asking you to persuade the officers of the PA-AMTA Chapter to exclude  Spiritual Massage HealingSM from  their bill because I have received no reply from Flagg.

Why I am writing to you

Steven C. Olson's President's Letter (in the January/February, 2001, issue of AMTA's Hands-On newsletter) is "An Invitation For Involvement." His letter, invites AMTA's members' to become involved in AMTA activities in different ways including "expressing your voice... AMTA's wonderful staff" [Olson said] "is ... eager to hear your concerns and challenges. By hearing your voice, AMTA can successfully complete its mission... Whatever path your involvement takes, on behalf of AMTA, I thank you."

In addition to Olson's invitation, one "purpose" of AMTA (set forth in Article I of its Bylaws), is "to foster a spirit of cooperation and the exchange of ideas" [i.e., information] " ... "among its members and others who are part of the field of massage."

Spiritual Massage HealingSM is different

than secular massage therapy

Spiritual Massage HealingSM is a religious ceremony and a form of worship based on the biblical "laying on of hands."1.2 Spiritual Massage HealingSM is therefore legally different from secular massage therapy.1,2,3 

The difference between Spiritual Massage HealingSM and secular massage therapy is documented in the third amendment to the Articles of Incorporation of the Church for Spiritual Healing and Health.4 (Articles of Amendment - Domestic Nonprofit Corporation. Entity No. 2615349. Microfilm No. 9787. (250-386). Pennsylvania Department of State. Corporation Bureau. December 1, 1997).

The Church for Spiritual Healing and Health is a not-for-profit Pennsylvania Corporation. The purpose of the third amendment4 to its Articles of Incorporation is:

1. "to clearly identify and define spiritual massage healing as an integral part of the religious purpose of the Church, and"

2. "to clearly differentiate spiritual massage healing, legally and otherwise, from secular massage therapy and other secular bodywork."

The separation of church and state

It is illegal for the officers of the PA-AMTA Chapter to attempt to regulate Spiritual Massage HealingSM because it is a religious ceremony and a form of worship. This is well documented in many  publications in the Spiritual Massage Ministry Newsletter and the Journal of Spiritual Bodywork which are available on  <www.healingandlaw.com>.

In the winter of 1993, I wrote to the Attorney General of the Commonwealth of Pennsylvania, and asked how the Commonwealth defines the terms "religion" and  "church." I wanted this information because I had begun to think about establishing the Church for Spiritual Healing and Health. I filed the Articles of Incorporation (for the Church for Spiritual Healing and Health) with the Commonwealth of Pennsylvania a year later on December 27, 1994.

On December 21, 1993, David J. DeVries replied to my above-mentioned letter. DeVries was the "Chief Deputy Attorney General [in the] Review and Advice Section [of the] Office of the  Attorney General [Earnest D. Preate, Jr.], Commonwealth of Pennsylvania.." His reply reads as follows:

"Dear Dr. Schatz:

"This will  acknowledge receipt of your recent letter to the Attorney General of Pennsylvania.

"I do not know of any 'definitions' per se which the Commonwealth establishes for the terms "religion' or 'church'.. The Commonwealth does not determine whether a church is 'legally accepted.' Such a concept does not comport with the constitutional separation of church and state."

The Constitution of the

Commonwealth of Pennsylvania

protects religious freedom

Article 1, Declaration of Rights protects "Religious Freedom" in the following words:

"All men have a natural and indefeasible right to worship Almighty God according to the dictates of their own consciences;"... [and] "no human authority can, in any case or whatever, control or interfere with the rights of conscience..."

I believe the Constitution of the Commonwealth of Pennsylvania protects the "religious freedom" of spiritual massage healers for whom Spiritual Massage HealingSM is a religious ceremony and a form of worship based on the biblical "laying on of hands.

I believe that spiritual massage healers have the "natural and indefeasible right to worship Almighty God according to the dictates of their own consciences."

I do not believe that the Pennsylvania legislature will violate the Constitution of the Commonwealth of Pennsylvania by enacting a bill that "can, in any case or whatever, control or interfere with the rights of conscience..." of those who practice Spiritual Massage HealingSM

Additional protection of

religious freedom

 According to U.S. Supreme Court Justice William O. Douglas. "No license may be exacted by the state for the performance of any religious exercise, nor a tax imposed on it."

My two reports1,2 addressed to Flagg and other publications3,5,6 provide additional legal evidence, that any attempt by the PA-AMTA Chapter to regulate Spiritual Massage HealingSM would violate constitutional law and U.S. Supreme Court decisions governing the separation of church and state, commercial speech, antitrust laws, etc.5

Spiritual Massage HealingSM

does not harm people

There is no need to regulate Spiritual Massage HealingSM to protect the public from harm because Spiritual Massage HealingSM (like secular massage therapy6) does not harm people.

ADDITIONAL REASONS

WHY I AM WRITING TO YOU

Adele Basayne,

AMTA's past president

"According to Adele Basayne ... past president  of the association, the AMTA recognized it needed to rethink how it viewed state regulation efforts. 'We've had this stance that we didn't control what chapters wanted to do legislatively,' she said. [But] In the last few years, we've seen that national does have an interest in keeping good relations with other organizations and techniques that may not be understood at a chapter level. [Practitioners of other techniques would say} that if we gave the chapter money, [we are] responsible for that. I can see that point of view.'"7

""Over fifty-thousand Dollars"

On August 10, 1998, the PA-AMTA Chapter informed its members that "We have spent five years and over fifty-thousand Dollars on this effort ...to pursue licensing" I believe this money came from AMTA's Law and Legislative Assistance Program (LLAP). Please correct me if I am wrong.

If AMTA's LLAP has given the PA-AMTA Chapter "over $50,000" ... to pursue licensing," then, based  on  Adele Basayne's comment about AMTA's responsibility,7 I believe AMTA has a responsibility to require the officers of the PA-AMTA Chapter to honor its commitment to "exclude  any modality that does not wish to be a part of the bill," and comply with my request that it exclude  Spiritual Massage HealingSM.

Margaret Wheatly

Margaret Wheatly, author of the book Leadership in the New Science, addressed the 1998 Annual National Convention of the American Massage Therapy Association. Massage Magazine paraphrased some of  her comments8 as follows:

1. "Rigid rules kill creativity...

2. "When an organization operates as a hierarchical machine with excess politics and  policies ... it becomes an impediment to change...

3. "It is vital that organizations do not become overstructurized and overpoliced ... and that individual members retain freedom, autonomy and creativity."

My service mark is my

incorporeal personal property

I have heretofore discussed reasons (involving the separation of church and state) that I believe prohibit the PA-AMTA Chapter from including Spiritual Massage HealingSM in any bill which  regulates secular massage therapy.

I now want to present secular reasons which I believe prohibit the PA-AMTA Chapter from restricting my use of my service mark Spiritual Massage HealingSM.

My service mark (like a trade mark, patent and copyright) is legally my incorporeal personal property. I believe that Constitutional Law and U.S. Supreme Court decisions protect my right to use my service mark in commercial speech, provided I do not use it in ways which are detrimental to people.5

Many trade marks include

the word "massage"

I do not believe that the PA-AMTA Chapter can legally restrict my use of my service mark Spiritual Massage HealingSM because it includes the word "massage." More than 75 trademarks with the word "massage" are registered with the U.S. Patent and Trademark Office.

Does the PA-AMTA Chapter believe a Pennsylvania act (which regulates massage therapy) can prohibit the commercial use of these 75 or more trade marks in the Commonwealth of Pennsylvania?

AMTA supported the right to commercial 

speech involving generic terms

The terms "massagemassage therapy," and "therapeutic massage" are generic because they do not refer to a unique and specific kind of treatment. "Craniosacral therapy" is also a generic term because it "encompasses a greater body of cranial work than the trade mark "Upledger CranioSacral Therapy" which refers to a specific kind of craniosacral therapy.9

In 1989, AMTA sued the  Maryland state Board of Physical Therapy Examiners et al  because they attempted to regulate AMTA's massage therapists. In this litiagation, AMTA claimed that certain massage terms such as "massage therapy" and "therapeutic massage" were generic.5 The term "massage" is also generic."5 AMTA then claimed that restricting the use of generic terms was illegal because it violated the right to commercial speech, provisions of the Antitrust Act, and other laws.5 

In 1998, AMTA's Special Committee on Conduct and Scope of Practice used "a generic approach" to "create a "generic statement" which applied to massage and massage therapy.10

I do not see how any state act that presently regulates secular massage therapists can legally interfere with their right to free (commercial) speech in which they use generic terms such as "massage,' "massage therapy," and "therapeutic massage."

The only justification for regulating the use of generic terms would be well-documented evidence that the use of such generic terms by unregulated secular practitioners has actually caused sufficient well-documented serious harm to justify the need to protect the public from that harm.5

The unrestricted use of the generic terms "massage, massage therapy, and therapeutic massage" (in states which  do not regulate massage therapists) has not resulted in any well-documented serious harm.

IS ALL STATE REGULATION OF

MASSAGE THERAPISTS ILLEGAL?

Is all regulation of massage therapists by state boards (of massage therapy, chiropractic, nursing, medicine, etc.) illegal because it violates the same laws that AMTA accused the Maryland state Board of Physical Therapy Examiners of violating in 1989.5

There is no well-documented evidence that massage therapists have caused serious  harm in states which do not regulate them. Consequently, there is no need for state regulation to protect the pubic from harm.11

WHY IS THE PA-AMTA CHAPTER

PROMOTING STATE REGULATION WHEN ONLY A MINORITY OF ITS MEMBERS WANT STATE REGULATION?

In these three surveys (conducted in 1993, 1997, and 2001) majorities of 83%, 79%, and 77.5% of PA-AMTA Chapter members, respectively, did not indicate that they want state regulation.

In these three surveys, only minorities of 17%, 21%, and 22.5% of PA-AMTA members indicated that they wanted state regulation. 

Why are the officers of the PA-AMTA Chapter promoting state regulation which only a minority of its members want?

 The first survey*

In 1993, Flag reported that 32% (60 of the 187 members who responded) favored licensure. The 187 respondents were 54% of all the 347 members.

What Flagg did not tell us is that the 60 members (who favored licensure) were only 17% of the total 347 membership. Therefore, a majority of 83% of all the 347 members did not indicate that they wanted licensure.10

The second survey

Similar information was not reported for the 1997 licensure survey published in the October, 1998, issue of The Balanced Body, the Pennsylvania AMTA Chapter newsletter. In this survey, 85% (253 of 298 respondents) favored licensure. These 253 respondents were only 21% of the 1,200 members.

What The Balanced Body did not tell us is that the 253 members who favored licensure were only a 21% minority of the (approximately) total 1,200 members. Therefore, a majority of 79% of all the members did not indicate that they wanted licensure.10

The third survey

Similar information was not reported for the December, 2001, licensure survey. In a February 1, 2001, letter,  Flagg told all members there was a 28% response from 431 members. Thus, of the 1,539 members were surveyed, only 347 (258 + 89) voted for licensure.

What Flagg did not tell us is that the 347 members (who want licensure) constitute a minority of only 22.5% of the total membership. Therefore, a majority of 77.5%  of all AMTA members did not indicate that they wanted licensure.

In some elections, such as those for government positions, the individual who gets the highest vote is elected, regardless of how many or how few of the total number of people (eligible to vote) actually voted. That is done because the office must be filled.

But there is no well documented evidence that state licensing of massage therapists is needed to assure competence or to protect the public from harm or for any other purpose that benefits the public.4,5

All the officers of the PA-AMTA Chapter want state regulation, but only a minority of its members want it.

Why are the officers promoting state regulation which an overwhelming  majority of its members apparently do not want?

ADDENDUM

The restricted use of the generic term

"medical doctor" is justified

The term  "medical doctor" is generic because it applies to a whole category of practitioners; i.e., surgeons, psychiatrists, pediatricians, oncologists, family doctors, osteopathic doctors, rheuma-tologists, anesthiologists, etc. The use of the term "medical doctor: is restricted because the unrestricted use (by inadequately trained individuals) has resulted in serious harm and death.

References

1.  Schatz, A. Spiritual Massage HealingSM  should be exempt from state regulation of secular massage therapy. Massage Law Newsletter. 19(2):1 - 3, 2001.

2. Schatz, A. Can we trust PA-AMTA to honor its commitment to "...make sure that the language of" its "bill excludes any modality that does not wish to be part of the bill." PA-AMTA is the Pennsylvania Chapter of the American Massage Therapy Association." Massage Law Newsletter.. 20(4):1-4 2001.

3. Schatz,, A. Massage therapy and spiritual massage healing are legally different modalities.  Spiritual Massage Ministry Newsletter. 1(1):1-2. 1995.

4. A third amendment to the Articles of Incorporation of the Church for Spiritual Healing and Health. Journal of Spiritual Bodywork. 3(2):7. 1998.

5. Schatz, A. , and Brewster, M. Are all state laws which regulate massage therapists illegal? Massage Law Newsletter. 20(2):1-9. 2001.

6. Schatz, A., and Brewster, M. There is no legal justification for state regulation of massage therapists. Part 1: Evidence that massage is safe versus evidence that massage is harmful. Massage Law Newsletter. 17(2):1-9. 2001.

7. Walsh, K. The Regulatory Net. Part One: The Catch-All Effect of Massage Laws. Massage Magazine. pages 114-127. March/April. 2000.

8. Association News from Around the World. American Massage Therapy Association. 1998 Annual National Convention. Massage Magazine. page 141. May/June. 1998.

9. Walsh, K. Craniosacral organizations debate use of title. Massage Magazine. pages 19-20. January/February. 1999.

10.  Answers to questions about  Scope and Practice. Hands On (AMTA Newsletter) 9(3):6. May/June. 1998.

11. Schatz, A. Pennsylvania does not need to regulate massage therapists to protect the public safety, health , and welfare; or for any other reason. Massage Law Newsletter 11(3): 1-3. 1999.

cc:  Clarence D. Bell. Chair. Pennsylvania Senate Committee for Consumer Protection and  Professional  Licensure

Alexandra Matthews, Esq. Legal Counsel.  Pennsylvania Senate Committee for Consumer Protection and Professional Licensure 

Michael Fisher. Attorney General.  Commonwealth of Pennsylvania

Tom Ridge. Governor, Commonwealth of Pennsylvania

Allyson Y. Schwartz. Senator.  Commonwealth of Pennsylvania

PA-AMTA Board members:

Nancy Porambo, Cheryl Callahan,

Kathy Bustard, Dee Thompson,

Marcia Shaw, Nick Claxton,

Helen Traglia, Retta Flagg

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