It's high tide in California when it comes to massage legislation, with two bills signed by Governor Gray Davis in September. Interestingly, the two pieces of legislation take somewhat opposite approaches: one toward freedom of practice; the other toward increased regulation.

First, we reported in the March 2002 issue that SB 577 had been passed by the California Senate and was moving through the state Assembly. (See "California Massage Bill Moves Through Senate" online at www.massagetoday.com/archives/2002/03/02.html.) The bill, introduced by Senator John Burton (D-San Francisco), sought to amend existing California legislation that classified massage and many other unlicensed alternative health care services as technical violations of the state's Medical Practice Act.

As originally written, SB 577 proposed an addition to the existing California Business and Professions Code, such that:

Section 2053.5 Notwithstanding any other provision of law, a person who discloses to a client that he or she is not a licensed physician shall not be in violation of Section 2051, 2052, or 2053 unless that person does any of the following:

1) Conducts surgery or any other procedure on another person that punctures the skin or harmfully invades the body.

2) Administers or prescribes x-ray radiation to another person.

3) Prescribes or administers legend drugs or controlled substances to another person.

4) Recommends the discontinuance of legend drugs or controlled substances prescribed by an appropriately licensed practitioner.

5) Willfully diagnoses and treats a mental or physical condition of any person under circumstances or conditions that cause or create great bodily harm, serious physical or mental illness, or death.

6) Holds out, states, indicates, advertises, or implies to a client or prospective client that he or she is a physician, a surgeon, or a physician and surgeon.

SB 577 was approved by Governor Davis on September 23. The bill retains the original stipulations, but with the following amendments:

In Section 2053.5 (see above), practitioners will not be in violation of the Medical Practice Act unless that person:

7) Sets fractures.

8) Treats lacerations or abrasions through electrotherapy.

Additionally, the bill now requires specified disclosures to each client about practitioner training and method of treatment:

Section 2053.6 is added to the Business and Professions Code, to read: 2053.6. (a) A person who provides services pursuant to Section 2053.5 that are not unlawful under Section 2051, 2052, or 2053 shall, prior to providing those services, do the following:

(1) Disclose to the client in a written statement using plain language the following information:

(A) That he or she is not a licensed physician.

(B) That the treatment is alternative or complementary to healing arts services licensed by the state.

(C) That the services to be provided are not licensed by the state.

(D) The nature of the services to be provided.

(E) The theory of treatment upon which the services are based.

(F) His or her educational, training, experience, and other qualifications regarding the services to be provided.

2) Obtain a written acknowledgement from the client stating that he or she has been provided with the information described in paragraph (1). The client shall be provided with a copy of the written acknowledgement, which shall be maintained by the person providing the service for three years.

b) The information required by subdivision (a) shall be provided in a language that the client understands.

(c) Nothing in this section or in Section 2053.5 shall be construed to do the following:

(1) Affect the scope of practice of licensed physicians and surgeons.

(2) Limit the right of any person to seek relief for negligence or any other civil remedy against a person providing services subject to the requirements of this section.

In a press release on his website, Governor Davis commented on the significance of SB 577:

"This bill provides adequate safeguards for California consumers and enables them to make an informed choice regarding their personal health care. It will ease access to alternative and complementary health care options for all Californians."

As SB 577 moved through the California legislature, AB 15 was doing the same. Introduced by Tom Harman (R-Huntington Beach) in December 2000, the bill, the text of which is significantly more concise than that of SB 577, required numerous amendments, but passed the state Assembly and was signed by Governor Davis on September 29.

The bill's stated purpose is explained as follows:

Existing law authorizes the legislative body of a city for incorporated areas or county for unincorporated areas to enact an ordinance that provides for the licensure of a massage business. This authorization does not apply to cosmetologists, barbers or persons licensed to practice any healing art pursuant to specified provisions. This bill would include chiropractors among the persons for whom the authorization would not apply and would provide that the above described authorization does apply to an independent contractor of any of these persons if the independent contractor is engaged in, or is purported to be engaged in, the business of massage.

In layman's terms, AB 15 appears to do two things:

1) It stipulates that those performing massage as independent contractors of cosmetologists, barbers and chiropractors must meet local licensing requirements.

2) It includes chiropractors in the exclusion given to barbers and cosmetologists from being regulated by local agencies.

The press release for AB 15 on Governor Davis' website provides additional clarification:

"AB 15... will "stop massage services that are a front for prostitution, by authorizing local governments to require a business license for independent contractors who are employed by State licensed cosmetologists and health care professionals (primarily chiropractors)."

Keith Eric Grant, PhD, NCTMB, a California massage therapist well-versed in massage legislative activity in the state, offered his interpretation of both bills:

"In my opinion, the direct effects of SB 577 are limited to issues of practicing medicine without a license, particularly as they apply to health insurance reimbursement and professional liability for therapeutic practice. SB 577 eliminates many problems in these areas.

"Indirectly, it strengthens the concept that noninvasive health care practices can be both credible and unlicensed. California has explicitly recognized this concept [with SB 577]. This is another tool for changing attitudes.

"It also clearly shows that there is an alternative to dealing with broad practice acts (such as physical therapy and chiropractic) other than simply creating another broad practice act. The alternative is simply to move noninvasive practices to an unlicensed common ground. This precedent may changes attitudes, even for regulatory acts not directly affected by SB 577.

"[With regard to AB 15] in localities in which the licensing regulations are punitive, it doesn't allow MTs to get around licensing by working as independent contractors for chiropractors. It doesn't seem to affect those who are directly employed by chiropractors, however, and seems congruent with the assumption that independent contractors must be able to practice independently of those contracting them."