MLN Vol.7.No.2

Massage Law Newsletter

Vol. 7, No . 2                                    ISSN 1073-5461                                      March 1999    ]

 STATE REGULATION IS NOT NEEDED TO PROTECTTHE PUBLIC FROM HARM BECAUSE

LICENSED MASSAGE THERAPISTS HARMED PEOPLE

 BUT UNLICENSED MASSAGE THERAPISTS DID NOT

Albert Schatz,Ph.D.

To have a voice is to have a place in the world and when we liberate our voice, we release our spirit from retinence and restraint. Paul Newham

ALBERT'S "RULES OF ORDER"

To intelligiently discuss whether state regulation is needed to protect the public from harm by allegedly inadequately trained massage therapists, it is necessary to have well-doc- umented information about

1. How much harm has actually occurred, the nature of the injuries, and how serious they were  - in states which do and do not regulate massage therapists.

2. The amount and kind of training and the  years of experience of the massage therapists who actually caused the harm.

Without this well-documented informa- tion, there neither is nor can there be any well-documented evidence that:

1.  State regulation protects the public from harm.

2. State regulation is needed to protect the public from harm

3. State regulation could provide that pro- tection if it were needed.

4. Some massage therapists are inadequately trained while others are adequately trained, regardless of the amount and kind of training that they all have.

Without this well-documented evidence, there is nothing to discuss.  

WHAT THIS REPORT IS ALL ABOUT

This article reports that people have been harmed by licensed massage therapists in states with regulation, but not by unlicensed massage therapists in Georgia which does not regulate these practitioners.

No well-documented harm had actually occurred in Georgia. Legislators were not impressed by theundocumented harm which the Georgia AMTA Chapter submitted to justify the alleged need for Senate Bill 300 to protect the public from harm, allegedly caused by in- adequately trained practitioners.

The entire superstructure

of state regulation is irrational

Without well-documented information about the amount and kind of harm, caused by massage therapists, in states which do and do not regulate these practitioners: 

1. There's no justification to regulate massage therapists to protect the pubic from harm by allegedly inadequately trained massage therapists.

2. There's no justification to assume that allegedly inadequately trained massage therapists are less qualified and less competent than allegedly adequately trained massage therapists.

Massage therapists who consider themselves adequately trained are only allegedly adequately trained.  Massage therapists who are licensed in Texas, which requires a 250-hour training, are allegedly inadequately trained for Nebraska, which requires a 1,000-hour training. 

All state regulatory requirements are irrational because each state alleges that its  requirements are adequate. Furthermore,there's no well-documented evidence that the regulatory requirements of any state are more or less "adequate" than the requirements of any other  state.

Adequate" for what?"

There's no well-documented evidence that any state's requirements:

1. assure competence in terms of on-the-job performance because this kind of competence cannot be measured objectively.

2. protect the public from harm because massage therapists, regardless of their training, do not cause enough harm from which the public needs to be protected.

Massage should be considered innocent

of harm unless proved guilty

Regulation of massage therapists should be presumed to be unnecessary unless there's well-documented evidence that:

1. Enough well-documented and sufficiently serious harm, caused by massage therapists, has actually occurred to justify the need for regulation to protect the public from that harm, and

2. Regulation can indeed provide the protection that the public allegedly needs.

Proponents of state regulation to allegedly protect the public from harm, do not tell us how much well-documented serious harm has to be caused by how many allegedly inadequately trained massage therapists in how many people in order to justify regulating all massage therapists to protect the public from that harm.

 Nor do they provide well-documented evidence that state regulation of massage therapists could indeed provide the protection which they allege is needed.

HARM CAUSED BY LICENSED

MASSAGE THERAPISTS

The following information about harm is calculated from data in the report "Medical Malpractice Implications of Alternative Medicine" by David M. Studdert, et al.  (Journal of the American Medical Association.  Vol. 280. No, 18. pages 1610-1615, November 11, 1998).

Unless otherwise indicated, the following data are per 1,000 licensed massage therapists for the years 1993, 1994, 1995, and 1996.

Seven claims for indemnity payments were filed against massage therapists. This amounts to 1.75 claims filed annually.

An average of 42.5% of the claims were paid. This amounts to 0.75 of a claim paid annually. 

If only those claims, which were paid, represent harm that was considered to have been caused by the massage therapists, there was 0.75 of an injury per year

61% of all claims were for "minor" injuries most of which were soft tissue injuries. This amounts to 0.46 of one soft tissue injury for which a claim was paid annually. This is equivalent to one soft tissue injury every 2.2 years.

The average annual indemnity payment per claim was $6,342. This relatively small amount does not indicate a major injury.

In 1997, there were about 54,000 licensed massage therapists in 23 states which regulated massage. The average 2,350 licensed massage therapists in each of these 23 states caused approximately 1.1 soft tissue injuries. 

This is not serious harm. Nor is it much harm. But it is harm that is well-documented at leasst in terms of its having been associated with payments for indemnity claims.

Why it's unlikely that massage therapists

caused "major" or "grave" injury

If a massage therapist caused brain-damage, quadriplegia, or death; this would have been reported on the front page of newspapers and on national evening TV news.

Only 7% of all claims were associated with "major" and "grave" injuries. These  include serious fractures, serious internal injuries, loss of a limb, ruptured disks, brain damage, quadriplegia, death, etc.

This 7% amounts to  0.05 of an injury for four years and 0.013 of an injury per year. This is equivalent to one "major" or "grave" injury every 77 years, if such injuries do indeed occur.

Since the average annual indemnity claims, for the four years period, were $12,011, $4,251, $4,864, and $4,253 respectively, it is unlikely that any massage therapist caused a "major" or grave" injury.

Professional liability insurance does not cost more in states which do not regulate massage therapists, than in states which do. Furthermore, this insurance for massage therapists is relatively inexpensive because few if any injuries occur and they are not serious.

Other kinds of harm

The JAMA article also reported that 14% of the claims against massage therapists were for "Sexual harassment," 15% were for "Nonphysical harm," and 4% were for "Other" kinds of harm. The "nonphysical" and "other" kinds of harm were not defined.    

WHY GEORGIA HAS NOT

 REGULATED MASSAGE THERAPISTS

Georgia legislators did not fall 

into the potential harm trap

In 1997, the Georgia Occupational Review Council concluded, as a result of research which Georgia legislators had done:

1. There is no documented evidence of actual harm to the public."

2. "The potential for harm to the public appears to be remote and would not be alleviated by licensing."

The following information is taken from the Review of Senate Bill 300. A report  of the Georgia Occupational Regulatory Review Council (ORRC) October 1997.

"The Georgia Occupational Review council is required by O.C.G.A. 43-1A-6 to apply the following criteria when evaluating whether a profession or business should be regulated:

1. "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.

2. "Whether the practice of an occupation requires specialized skill or training , and whether the public needs and will benefit by assurances of initial and continuing occupational ability.

3. "Whether the citizens of this state are or may be effectively protected by other means; and

4. "Whether the overall cost effectiveness and economic impact would be positive for citizens of this state."

"Senate Bill 300 proposes to regulate massage therapists in Georgia. The American Massage Therapy Association supports Senate Bill 300. The Physical Therapy Association of Georgia opposes Senate Bill 300."

 "Representatives from the applicant group" (the Georgia AMTA Chapter) "estimated that there are probably 1,000 massage practitioners in Georgia and that each practitioner performs an average of 20 massages per week. This information translates into over one million massages currently performed during a one year period."

"Potential for Harm"

"The applicant group has identified several areas that they believe pose potential harm to the general public... First, they state that inadequately trained massage practitioners can cause physical harm if the client has medical conditions  - such as uncontrolled hypertension or diabetes - which indicate that massage should not be performed.

"Also, they expressed a concern that an inadequately trained massage practitioner may not be knowledgeable of the effect of massage therapy on infectious diseases and could spread the infection by performing massage on a client.

"Second, the applicant group states that unethical massage practitioners can violate clients sexually and cause psychological and emotional damage.

"Third, they indicate that more and more people are seeking the benefits of massage therapy, but cannot identify qualified practitioners in the telephone yellow pages because there is little to distinguish the trained, qualified practitioners from untrained person and/or fronts for illicit services."

"However, our review of available information indicates that the number of complaints concerning massage practitioners is very small; and, of those complaints cited, many allege sexual misconduct which under Georgia law is a criminal act. Moreover, there is little evidence that unqualified massage therapists have inflicted physical harm on clients.

"Finally, the proposal includes a grandfather provision that would permit all currently practicing massage practitioners, whether trained or performing illicit services, to be licensed."

There's no well-documented

evidence of actual harm

"In response to a staff inquiry on behalf of the Council, the Governor's Office of Consumer Affairs researched their files for the past nine and one-half years for complaints against massage practitioners.

"They found no record of any such complaints, indicating that there were so few complaints, that the Office did not establish a separate coding for massage practitioners.

"Similarly, contacts with Better Business Bureau offices around the state resulted in finding no documented complaints against massage practitioners  during the year ending July 9, 1997."

"The applicant group indicated that there is a potential for a massage practitioner to cause physical harm to a client if the client has undisclosed or unidentified physical problems.

"In their submission of information to the Council supporting regulation of massage therapists,the applicant group provided copies of a number of anonymous, individual complaints lodged against individual massage practitioners. In addition, the applicant group orally described several other instances in which physical  harm was believed to have resulted from a massage.

"This information, although helpful, does not suggest that widespread harm is resulting from massage therapists being unregulated for two reasons. First, many of these complaints alleged improper sexual advances which under existing state law is a criminal offense. Therefore, a legal remedy already exists for these types of complaints.

"Second, the total number of complaints and other incidents cited is quite small when considered in comparison with the number of massages performed in Georgia in a year.

"Representatives from the applicant group estimated that there are probably 1,000 massage practitioners in Georgia and that each practitioner performs an average of 20 massages per week. This information translates into over one million massages currently performed during a one year period.

Other State Programs

"Neighboring southeastern states that currently regulate massage therapists were surveyed as to why they chose to regulate massage therapists and the number and nature of complaints received and disciplinary actions taken to date.

"The reasons for regulation most often mentioned were that the industry brought the proposal to the legislature to obtain credibility, promote professionalism and get prostitution out of massage therapy."

"As to complaints and disciplinary actions taken, the State of Florida reported receiving 199 complaints in 1993-1994; 228 in 1994-1995; and  199 in 1995-1996.

"They also reported 3 revocations, 1 suspension, and 7 probation decisions in 1993-94; 2 revocations, 1 suspension, and 1 probation in 1994-95; and 2 revocations, 3 suspensions and 3 probation decisions in 1995-96.

"The nature of the complaints in Florida was described as continuing education violators, violations of sexual misconduct, and establishments with sanitation violations.

"Most of the other southeastern states' regulation is quite new but their staffs indicate that to date they have received few complaints and have taken few disciplinary actions.

"Only one state reported receiving a complaint that a therapist had injured a client. The nature of complaints most often cited in these states was practicing without a license and sexual misconduct."

MASSAGE THERAPISTS, REGARDLESS

OF THEIR TRAINING, DO NOT CAUSE SIGNIFICANT HARM

Avoiding the no harm trap

One might say that the sample of 1,000 unlicensed massage therapists in Georgia is only about 4% of the 27,000 licensed massage therapists, and that a larger sample might reveal harm. That is true. But this argument is comparable to saying that that regulation is needed to protect the pubic from harm even though sufficient harm to justify the need for regulation has never actually occurred..

This argument also overlooks the fact that so many people with so many contraindications have been massaged so many times by so many  massage therapists with so many kinds of trainings with so many published reports of so many  benefits but with so little if any well-documented reports of harm.

Where government agencies have done their own research, they have not found harm and have not regulated massage therapists.

In the Canadian Province of Quebec, the Office of Professions, a governmental agency, conducted a comprehensive two year research project (1990-1991) which revealed that massage therapists, regardless of their training, had not harmed anybody.  As a result, Quebec did not regulate massage therapists.

Because unregisterted massage therapists in the Province of Ontario do not cause more harm than registered massage therapists, one can legitimately conclude that Ontario's title protection act is not needed to protect the pubic from harm.

On the contrary, Ontario's title protection act is prima facie evidence that massage therapists do not harm people. This act permits anybody, regardless of his training,to do massage and also use the word "massage" in advertising, provided only that he not call himself a "massage therapist."

If title protection acts are not needed to protect the public from harm because there is no harm, neither are practice (licensure) acts needed  to protect the public from harm - for the same reason.  

WHAT I DON'T KNOW

I do not know of a single state which has regulated massage therapists because it had well-documented evidence that the amount and seriousness of harm, which had actually occurred, justified the need for regulation to protect the public from that harm.

I don't know any well-documented evidence that regulation has significantly protected the public from harm in any state.

I don't know any  well-documented evidence that regulation could protect the pubic from harm if that protection were needed.

I don't know any well-documented evidence that allegedly inadequately trained massage therapists have harmed more people than massage therapists who  are allegedly adequately trained.

I don't know any well-documented evidence that massage therapists, regardless of their training, have harmed more people with contraindications than without.

I don't know any well-documented evidence why state regulation is needed when professional liability insuranceoffers more protection to both  massage therapists and their clients.

I don't know any well-documented evidence that massage therapists have more professional status in the eyes of the public in states which regulate massage therapists than in states which do not.

I don't know any well-documented evidence that test scores on the National Certification Examination indicate competence in terms of on-the-job performance.

I don't know any well-documented evidence

that the overall competence of a massage therapist. in terms of her daily on-the-job performance, can be objectively measured by anyone but her clients..

I don't know any well-documented evidence that graduates of accredited schools  are more competent, in terms of on-the-job performance, than graduates of non-accredited schools.

I don't know any well-documented evidence

that local ordinances and state regulation of massage therapists have significantly reduced prostitution

I don't know any well-documented evidence that state regulation and local ordinances  benefit the public in any way.

WHAT I DO KNOW

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

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