MLN Vol.9.No.4

Massage Law Newsletter

Vol. 9, No .4                                  ISSN 1073-5461                                      May 1999   

WHAT WELL-DOCUMENTED EVIDENCE JUSTIFIES
THE ALLEGED NEED FOR STATE REGULATION IN MINNESOTA?

Where all men think  alike, no man thinks very much. Walter Lippmann

Anyone, anywhere can make a beginning; this is an area where one person can count, as Rosa Parks counted in the civil rights movement. (Staughton Lynd

Let's dialogue

We believe the massage profession will benefit if those, who disagree, discuss their views openly and provide well-documented evidence which supports their positions. The important issue is not who is right and who is wrong, but what is best for the profession.

It is our hope that the Massage Law News- letter  and  our website <http://www.tiac.net. users/maryella/>  will serve as an open forum for different views on state regulation, harm, contra-indications, national certification, school accreditation, and other controversial issues in massage.

We therefore invite those, with whom we disagree, to (a) submit articles with well-doc-umented evidence for publication in the Massage Law Newsletter, (b)  answer our questions, and (c) give us permission to publish their replies in the Massage Law Newsletter.

What's sauce for the goose

is sauce for the gander

We, in turn, have an obligation to (a) provide well-documented evidence which supports our positions, (b) answer questions, and (c) permit our answers to be published.

Reducing theory to practice

The Winter, 1999, issue of the Minnesota Natural Health Coalition Action Network newsletter included a report, (on page 2) entitled Massage Therapy Regulation Discussed. This report reads in part as follows:

"On December 5, 1998, the Ad Hoc Committee for 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 that is not inclusive, and sees the current proposal 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 the coalition  is hearing is, "Why?"

"Proponents of regulation stated that it would be to protect the consumer and separate prac-titioners 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." 

Questions

 

To: Gayle E. Burdick. Government Relations Chair. AMTA. Minnesota Chapter

From:  Albert Schatz and Mary Brewster

We would appreciate your providing us with answers to the following questions and give us permission to publish the information, you provide, in the Massage Law Newsletter on our website.

Why does Minnesota need to regulate massage therapists?

1. What well-documented evidence reveals that the public has benefited in states which regulate massage therapists; and, if so, in what ways and to what extent has the public benefited in those states?

2. What well-documented evidence reveals that state regulation of massage therapists in Minnesota will contribute to the health, safety, and welfare of the public; and, if so,  in what ways and to what extent will it do so?

3. What well-documented evidence reveals that regulation has elevated the profession and has given massage credibility is states which have regulated massage; and, if so, to what extent has the profession been elevated, and to what extent has massage been given credibility - over and above what existed prior to state regulation?

How much harm has occurred

in Minnesota?

1.  How many allegedly inadequately trained massage therapists have harmed how many people in Minnesota during the past five years?

2. What was the nature of the injuries, and how serious were they?

3. How much training and how many years of experience did the massage therapists, who allegedly caused that harm, have?

4. If no such well-documented harm has actually occurred in Minnesota, why does Minnesota now need to regulate massage therapists to protect the public  from harm?

5. What well-documented evidence reveals that there is a higher incidence of harm associated with massage in people with contraindications, than in people without contraindications?

6. What well-documented evidence reveals that state regulation of massage therapists has protected the public from harm in states which regulate massage therapists?

7. How many people have to be harmed by how many massage therapists, and how serious do the injuries have to be to justify the alleged need for state regulation to protect the public from that harm?

8. What well-documented evidence disproves any allegations in the following two statements:

(a) Massage is safe because so many massage therapists with so many kinds of training in so many states (which do not regulate massage) have been massaging so many people, with so many contraindications, so many times for so many years, with so many well-documented reports of so many benefits - but with so few if any well-documented reports of harm.

(b) Because massage is safe, state regulation of massage therapists is not needed to protect the public from being harmed by massage therapists.

Does regulation of massage therapists

reduce prostitution?

What well-documented evidence reveals that state regulation and local ordinances have significantly reduced prostitution anywhere in the United States?

What is an adequate training

for massage therapy?

1. How do you account for the fact that so many massage therapists who are allegedly inadequately trained have had so many satisfied clients  for so many years, in Minnesota?

2. What well-documented evidence reveals that massage therapists who have Nebraska's 1,000 hours of training are more competent than massage therapists who have the 250-hour training in Texas?

3. Since state regulation requires trainings ranging from 250 hours in Texas to 1,000 hours in Nebraska, what training do you consider necessary for Minnesota, and what well-documented evidence do you have that that training is indeed necessary?

Which massage therapists

are competent?

1. How do you define and objectively measure the competence of massage therapists?

2. If there is no way to objectively measure the competence of massage therapists, what well-documented evidence reveals that:

(b) Massage therapists who pass the National Certification examination are more competent than massage therapists who fail.

(c) Massage therapists who have graduated from programs approved or accredited by the Commission on Massage Therapy Accreditation (COMTA) are more competent than those whose trainings have not met COMTA's standards.

3. If there is no way to objectively measure the competence of massage therapists, and if massage therapists (regardless of their training) have not harmed people, how do you distinguish between massage therapists who are allegedly competent and others who are allegedly in-competent?

4.  If there is no well-documented evidence that enables you to make the above-mentioned distinction, aren't massage therapists (who are considered competent) only allegedly competent because some state or private agency has alleged that they are?

Are state massage laws illegal?

1. What well-documented evidence is there that state regulatory requirements, which are allegedly designed to assure competence, actually do assure competence?

2. If competence cannot be objectively  measured, how can a state prove, in a court of law, that:

(a) Its standards do indeed assure com-petence.

(b) An individual, who has not met the state's regulatory standards, is indeed incompetent?

3. If a state cannot prove, in a court of law, that individuals are incompetent  simply because they have not met the states' regulatory requirements, is it lawful for that state to prohibit those individuals from presenting themselves as massage therapists and from earning a living by doing massage?  l

STATE LICIENSUE CREATES STATE-SANCTIONED

 MONOPOLIES, REDUCES COMPETITION, AND RESTRICTS

INFORMATION TO THE PUBLIC

Albert Schatz and Mary Brewster

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

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

This report is our response to requests for a summary of our research which presents the other side of the alleged need for state regulation

Our research is unique

Our research is unique because it is the first overall evaluation of the political, economic, and social fall-out that has resulted from the regulation of massage therapists and other body-workers by state laws, private agencies (which are components of the state regulatory apparatus), and local ordinances.

$$$$ $$$$ $$$$ $$$$

We are motivated to do research regulation because state massage laws and local ordinances have economically harmed some people. Regulation prohibits some individuals - mostly women - who have been doing massage for many years  without harming anybody, from continuing to earn a living that way.

It is ridiculous to have massage laws that require such individuals to spend considerable amounts of  money (which many of them cannot afford) to meet unnecessary state regulatory re-quirements, especially in view of present efforts to provide welfare recipients with opportunities to find jobs.

We need research to determine how many women and how many men have been adversely affected economically and in other ways by state laws and local ordinances which unjustifiably prohibited them from earning money by doing massage.  

Regulation also extracts millions of dollars annually from massage therapists and other bodyworkers who have to meet state requirements, which we believe are not justified by well-documented research.

The fees and other expenses that massage therapists have to pay, to legally earn a living by doing massage, are passed on to consumers.

Economic liberty

We believe this exploitation of massage therapists is an example of what the Institute of Justice, in Washington, D.C., calls economic liberty

A case in point involves African hair braiders. In some states, Cosmetology Boards are trying to close down African hair braiders.  They want the braiders to pay $6,000 for a 1,200 hour course in cosmetology to qualify  to do hair braiding.

The African hair braiders do not cut hair; nor do they apply chemicals. They do not need and would not use what the Cosmetology Boards want them to pay $6,000 to learn. The Institute for Justice is supporting the African hair braiders in their fight for economic liberty.

$$$$ $$$$ $$$$ $$$$

For cosmetology, the "total classroom revenues and test admission fees in California alone came to $544,000,000 in 1995.

"More reason for the cosmetology establishment to want to put the braiders out of business. So, in the guise of protecting the public, you get laws passed to keep out the competition."

This information is taken from Gloria Lau's article on page 220 in the October 20, 1997, issue of Forbes magazine.

The title of her article is "A hair-brained scheme."

The subtitle is "Don't like competition? How about getting laws passed to keep it out?

Conclusions

In the absence of well-documented evidence to the contrary, we conclude that  state regulation and local ordinances are not needed because:

1. They do not assure competence of massage therapists,

2. The do not protect the public from harm.

3. They do not significantly reduce prostitution.

4. They are not neeed to protect the public health, safety, and welfare in any other ways.

5. They were not  and are not promoted by consumer protection agencies, but by special interest groups that benefit economically from regulation.

6. The public health, safety, and welfare has not been adversely affected because states and municipalities have not regulated massage therapists and other bodyworkers.

Are state regulation and local

ordinances illegal?

Because state regulation and local ordinances do not assure competence and do not protect the public from harm, our research raises the serious question as to whether state regulation amd local ordinances violate Constitutional law and U.S. Supreme Court decisions which:

protect freedom of speech and  freedom of the press,

prohibit discrimination and inappropriate governmental interference in lawful business,

prohibit restraint of trade, unfair trade practices, and monopolies.

prohibit the "right to work" provisions in the United Nations' International Bill of Human Rights.

Epilogue

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

David had his sling.( I Samuel 17:49-50) 

We have the internet <http://www.healingandlaw.com>.

In the absence of well-documented evidence to the contrary, we will continue to believe:

Licensure is monkey business.

"Dress a monkey as you will, it remains a monkey still."

Dress a monopoly as you will, it remains a monopoly still.

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