MLN Vol.6.No.4

Massage Law Newsletter

Vol. 6, No, 4                                    ISSN 1073-5461                                      February 1999

NATIONAL CERTIFICATION IS NOT NEEDED TODAY

FOR THE SAME REASONS IT WAS NOT NEEDED IN 1993

Albert Schatz, Ph.D.

Opponents of national certification can take heart from the following comments:

Anyone, anywhere can make a beginning. This is an arena where one person can count, as Rosa Parks counted in the civil rights movement. -        Staughton Lynd

Never doubt that a small, committed group can make a difference ... indeed it's the only thing that has. -                Margaret Mead

Truth for authority, not authority for truth.-           Lucretia Mott

The law will never make men free. It is men who must make the law free. - Henry David Thoreau

I have need to be on fire because I have  mountains of ice about me to melt.-

                                William Lloyd Garrison

Looking back. I began doing research on state regulation of massage in 1987, and began publishing in 1993. Since then, my belief that state regulation and national certification are not needed has been supported by considerable evidence.

"The U.S. Supreme Court (case No. 93-639) invalidated a Florida restriction on the use of non-governmental certification credentials in business advertising. This "case created  'established law' for the protection of private certification programs and titles against undue state interference." (Touch Therapy Times. November, 1994).

The information, in this present report, is taken from our first article Is state regulation of massage illegal? (Massage & Bodywork Quarterly. pages 42-52. Fall. 1993). This 1993 article has the references for what I quote here.

________________

This [1993] report is concerned with legal implications of state regulation of massage. These issues should be seriously considered because:

(a) Compulsory credentialing of other professional groups has generated considerable litigation.

(b) Some legal decisions in those lawsuits are relevant to state regulation of massage.  

(c) State legislators, members of state boards of massage, massage professionals, and others cannot  give their informed consent to state regulation of massage unless they know the proverbial other side.

This report presents that other side.

It is one thing for an individual to voluntarily take a written certification test. But  serious legal issues arise when state laws require massage professionals to take a written certification test and meet other standards of questionable relevance to competence in terms of job performance. This is why there has been considerable litigation about compulsory credentialing in other professions.    

There is no convincing evidence that supports the alleged benefits of state regulation of massage. For example, does state regulation of massage reduce prostitution? We have not found any research on this. Does compulsory state certification protect the public in any other way? One might answer this question by finding out:

(a) How many massage professionals (per hundred) have been sued by clients in those states which regulate massage and in other states which do not?

(b) What charges were filed against the defendants?

(c) What was the outcome of each of those lawsuits?

We have not found any research on this.

Massage is a benign health care modality. It is not intervention in life-threatening situations. Massage professionals do not prescribe or administer medication. These and other considerations (to be discussed) pose an important but unanswered question: What demonstrably useful purpose does state regulation of massage serve?

Certification has produced litigation based

on antitrust law, discrimination,

restraint of trade, etc. 

1. "The major decisions made by courts in cases involving certification have evolved from antitrust law, and constitutional issues of discrimination and restraint of trade, or the inability to pursue one's profession."13

2. "Recent legal challenges have raised questions about job relatedness and fairness of such examinations, especially when they are primarily in the written and multiple choice mode. The validity and credentialing must be viewed in terms of the extent to which these examinations simulate job-related performance and permit appropriate judgment of competence." cited in D'Costa13

3. "It is clear that courts want assurance that any examination does in fact measure the knowledge, skills and abilities required to perform the job competently and that the exam differentiates between those who are and are not competent."13

4. "Antitrust law can and should be used to contest the dominance of a single ideology of health care, and to facilitate the development of alternative sources of consumer information... Whereas the quality of advice given to the public about health care personnel and similar matters should not be closely regulated, neither should the supply of competing information and opinion be artificially curtailed."18

5. "A state's right to protect the public safety by restricting an individual's access to a profession of his or her choice is not unlimited."19  

6. "Recent developments indicate that legal constraints on the (credentialing) process are likely to increase. Included among these trends  are state-imposed validity requirements, the increasing application of the antitrust laws,... the judiciary's growing familiarity with validity issues, and a reexamination of constitutional principles as applied to educational testing. All these developments point to greater legal scrutiny."19

7. "Only recently ... has antitrust law become relevant to the credentialing process."19

8. "In antitrust terms, a credentialing examination may restrain trade unreasonably if it does not measure competence and thereby prevents minimally competent professionals from practicing."19

9. "It takes only a superficial familiarity with the credentialing process to become aware of its vulnerability  to antitrust attack. First, credentialing activities allow professions to influence not only the number of practitioners but also the nature and mode of their practice. Second, credentialing agencies composed of competitors develop the examinations given to candidates."19

10. "Evidence of the validity of credentialing examinations may soon prove to be a necessary defense to a prospective antitrust action."19

11."The courts have imposed a requirement of fundamental fairness on private associations that have the power substantially to affect an individual's ability to pursue his or her profession... In practice, the requirement of fundamental fairness is indistinguishable from the constitutional requirement; so the constitutional analysis is equally applicable to both private and public bodies."19

12. "A state agency composed of" individuals "appointed by the governor and approved by the state" is not necessarily "immune from antitrust laws under the state action doctrine."19

13. "Another recent legal development is the trend toward continuing competency requirements for professionals. This trend will certainly foster legal challenges of the credentialing process."19

What does certification cost,

 and who pays?

1. "There are considerable costs both in real dollars and lost opportunities associated with certification programs."13

2. "The costs will have to be passed on to patients, clients or organization members."13

3. "Licensure laws ... in practice are detrimental to consumers... Licensure contributes to high" health "care costs and stifles competition, innovation and consumer autonomy."17

4. Although most definitions of certification include explicitly or implicitly the concept of voluntarism, incorporation of certification requirements and procedures into licensing or legal credentialing is not uncommon."13

5. "Credentialing as practiced by professional interests ... is ... a vital part of a larger cartel strategy to curb competition by standardizing personnel and services and controlling the flow of information to health care consumers."20

6. "Delicensure would expand the range of  health services available to consumers and reduce patient dependency, and these developments would tend to make" health care "practice more satisfying to consumers and providers of health care services."17 

Certification tells nothing about

the competence of massage professionals

in terms of performance

1. "Objective tests can determine what individuals know, but they cannot reflect the guided intuitions, holistic sensitivity or richness of experience that proficient and expert practitioners use in managing patients and clients."13

2. "The agencies that use written tests make an assumption  that if individuals select the correct answers, they not only are knowledgeable but probably also possess the ability to perform. Although this assumption may be true, it represents an inferential leap, based thus far on faith alone."13

3. "Most examinations trivialize competent and expert performance to a structured, formalized set of facts, rules, principles and theories."13

4. "The paradoxical situation often arises that a person scoring exactly at the passing score is judged competent, whereas a person scoring one point lower is judged incompetent."13

5. "Thus competent practitioners could either pass or fail the certification examination, and successful test-takers could be either incompetent or competent on the job."13

6. "If competence is defined in terms of ability to do the job or to constantly meet performance expectations, certification will not serve this purpose. Certification examinations sample only an individual's ability to select correct answers to questions."21

7. "As an employer, do you really want to hire someone who, even though certified, could be wrong 30% of the time!"21

Certification is of no benefit to clients

and of no benefit to the public.

1. "Certification may indeed be in the public's best interest, but it behooves those who espouse, implement and promote it to demonstrate for whom it has practical utility and whose best interests are really being served yours, mine, ours or theirs."13

2. "Those who develop, promote and implement certification programs have desirable and relevant intentions and goals. The reality thus far, however, does not seem to match that which has been promised and is anticipated."13

3. "There is a paucity of either subjective or objective data to demonstrate specific client or patient benefits from certification."13

4. "There is little or no evidence to support the notion that certified individuals ... give better service or achieve more desirable or higher quality outcomes than do noncertified ndividuals."13

5. "As to the question of certifying  effectiveness, how will we know 'objectively' that the outcome of a given treatment is 'effective'? ... It is possible ... to see absolutely  nothing happening... Yet we know it would be inappropriate to label that treatment as ineffective."15

There is no rational basis for certification

 to require 500 hours of training

for massage professionals.

1. "I do not think that standards for teaching course content ... could be helpful... My experience tells me, as does my research, that most practitioners will adapt ... to their personal way... It is hard to standardize ... or develop a 'certification' saying you can do this."16

2. "It seems ... that the only thing that could possibly be certified' is the number of hours of study one has completed ... and this seems a rather irrelevant focus for certification."1

3."If we cannot objectively measure the administration or the outcome of a treatment, how can we possibly certify how many hours it takes to get to that level of performance? Again we set ourselves up to look quite foolish.15

What do massage professionals,

 their clients and the public really want?

"People everywhere are wanting a new way of practicing, a new way of connecting ... with themselves, with patients and with each other. Let's go with that energy ... with support and information and education and trust, and not collapse, out of fear, into a patriarchal model which tries to maintain and control power. We all realize that this model is already doomed.15

"Let us ... as practitioners, continue to be leaders in pioneering a model based on shared power, demystified knowledge accessible to all, and trust in ... fundamental wisdom."15

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