Facts CA Massage Therapists Need to Know About the Massage Therapy Act and CAMTC

June 8, 2017


California Massage Therapists jumped with enthusiastic support when the Massage Therapy Act presented us the prospect of gaining more professional legitimacy and respect in our communities.

Unfortunately, the architects of the Massage Therapy Act neglected to mention the fine print to Massage Therapists and legitimate professionals have lost their careers and their lives as a result. The following facts explain what you need to know and what needs to happen to stop this injustice from destroying more innocent lives.

 

1) The Massage Therapy Act bypasses our justice system.

Besides adding assurances that consumers have access to competent and ethical massage therapists, the primary impetus for creating the Massage Therapy Act was to help curb prostitution and human trafficking by making it easier to convict bad actors.  The Massage Therapy Act accomplished this by authorizing the CAMTC's private tribunal, the Professional Standards Division (PSD), to suspend Constitutional Rights to enable swift action. Why would our State Representatives approve this?

 

2)  The PSD uses the lowest standard of proof.

Due to the profound destruction that convictions such as sexual assault bear, courts evaluate criminal claims by the highest standard of evidence: “Beyond a Reasonable Doubt.” But this makes it very difficult to make criminal convictions and get guilty perpetrators put away quickly for the public good.

The Massage Therapy Act only requires the CAMTC to observe the lowest standard of proof called "Preponderance of Evidence” -which allows CAMTC certificates to be suspended or revoked on nothing more than written testimony even for criminal claims. This enables innocent lives to be destroyed on a whim. Why did our State Representatives allow this?

 

3) The CAMTC is motivated to suspend and revoke certificates regardless of evidence.

On page 20, under Overall Cost of Program Compared to its Success, the CAMTC states:

 “The CAMTC reported in its 2015 Sunset Review Report that it's hearing process works very well and is cost effective. …Before sending a proposed denial or proposed revocation or discipline letter, the CAMTC makes sure that there is sufficient evidence to take action against the individual. This results in a very high number of proposed denials and proposed certificate holder disciplines being upheld…

Ref. http://sbp.senate.ca.gov/sites/sbp.senate.ca.gov/files/CAMTC%202016%20Background%20Paper.pdf

The PSD measures their efficacy by upholding proposed denials and disciplines. They don’t want to find you innocent because if they did, their ratio of “proposed” actions to upheld proposals will go down and they’ll be retired (“sunset”) for failing to “prove” to CA legislation and the League of Cities that they’re a necessary organization. Thus they are motivated to ignore evidence and contrive arbitrary justifications to fulfill their political agenda.

Their statement reveals that when they send a letter “proposing” to discipline you they’ve already decided to do it. It doesn’t matter what evidence is in your favor when you present our side of the story. The decision has already been made. The hearing they offer you is nothing more than a formality of pretense.

When the PSD sends a letter “proposing” a discipline, they’re basing it on claims made before you’ve presented your side of the story. Anyone who’s received a letter from the PSD has seen the unambiguous language stating claims as fact -not allegations or claimsbefore the PSD receives the defendant’s side of the story and supporting evidence.

In the scientific community fudging numbers like this is considered fraud and has serious financial and career consequences. To put this in perspective:

“…papers retracted due to misconduct accounted for approximately $58 million in direct funding by the NIH between 1992 and 2012…” and “Researchers experienced a median 91.8% decrease in publication output and large declines in funding after censure by the ORI.”

See www.ncbi.nlm.nih.gov/pmc/articles/PMC4132287

How did CA Legislature miss this telling detail? More concerning is, if they caught it, why did they allow this travesty of Justice to continue?

 

4) The CAMTC violates the Constitutional Rights of certificate applicants and holders. 

Since 2009 the CAMTC has denied certificate applicants and holders their Constitutional Rights to fair hearings and due process, in part, by not allowing defendants to confront and cross-examine accusers.

From 2015 to 2016’s first quarter, 117 certificates were revoked, 1 was suspended for 1 year and 3 were suspended for 6 months.  That’s 121 lives in 1.25 years that were seriously disrupted and most likely destroyed with nothing more than a written declaration made against them. The CAMTC has been doing this since September 2009, so the number of lives they destroyed over the last 7.75 years is close to 750.

While we don’t know yet how many of those individuals were actually guilty of harming massage consumers, considering the available evidence, the number of innocent lives that have been destroyed must be substantial. Those established careers don’t include the 643 careers that were denied from even starting during the same period.

A Superior Court in 2016 seems to be the first to have found this obstruction of justice. The court ordered the PSD to provide a new hearing that requires claimants to be confronted and cross-examined. But that won’t prevent the PSD from ignoring what the cross-examination revealed no matter how damning it was for the claimants and how vindicating it was for the defendant. This is just what the PSD was forced to do in one case, which represents less than 1% of cases that would go to court if all massage therapists could afford it.

Court rulings don’t change the law, they only enforce it. Since the PSD has gotten away with circumventing the law for nearly 8 years it’s highly unlikely they’ll change their procedures to inform defendants of their Constitutional Rights much less observe those rights unless challenged by informed appellants. Only an amendment to the Massage Therapy Act will force a permanent change in PSD procedure unless the CAMTC Board of Directors changes those procedures from within.

 

 5) The appeal process is virtually inaccessible.

When your certificate is denied, suspended or revoked, the ONLY way to appeal that decision is through what’s called a “Writ of Mandamus” which costs $20,000. That’s just to kick things off. If you need to escalate your case to the Court of Appeals, you would have to drop another $25,000. And these don’t include all other miscellaneous fees related to your case. 99% of massage therapists simply can’t afford this. This is the equivalent of being denied an attorney if you can’t afford one in a court of law.

 

6) Your massage liability insurance provider may not cover you.

American Massage Council and ABMP do not cover claims made against your certificate or license and AMTA only covers $10,000 for legal expenses per proceeding so long as it’s not related to claims of sexual misconduct. Again, 99% of massage therapists neither have the assets nor the credit to take out a loan to raise $10,000 much less $20,000 - $55,000+.

Hiscox and Professional Program Insurance Brokerage are the only insurance providers I found that will adequately cover claims made against your CAMTC certificate and claims of sexual misconduct, but such policies begin at $500 per year. You will also need income protection in your policy should you be forced out of massage and unable to find any other viable work while you fight the good fight and reinvent yourself.

 

7) You may have to wait a year or longer to get your case heard in Superior Court.

When you file a Writ of Mandamus you should also file for an Ex Parte Stay so the court will (hopefully) suspend the action by the PSD, allowing you to keep your certificate and stay in business pending the outcome of your Superior Court hearing. 

But judges who want to be re-appointed will likely deny your Ex Parte Stay to show the public that he or she didn’t let a possible predator or incompetent therapist remain a threat to their community pending the hearing, and your career comes to an abrupt end until your certificate is reinstated -which will most likely be never due to the CAMTC’s political agenda.

For those who have been massage therapists exclusively their entire lives, this means going back to college to earn a degree or get vocational training to effectively compete for a viable job in a new career field. How are those massage therapists expected to reinvent themselves if they can’t even afford to support themselves?  

 

8) The CAMTC allows cities to violate the Massage Therapy Act.

In her most recent report to the Board of Directors, CAMTC Director of Governmental Affairs, Beverly May, states on page 50:

“There are approximately 190 cities and counties that require certification at this point. At least 13 others … are in some stage of preparing a new ordinance, and the intent of each at this point is to require certification. …It will take some political push to move the process.”

Section 4603.1 of the Massage Therapy Act states:

Local governments shall impose and enforce only reasonable and necessary fees and regulations on massage businesses and massage establishments, in keeping with the requirements of existing law and being mindful of the need to protect legitimate business owners and massage professionals, particularly sole providers.

See www.camtc.org/media/1317/massage-therapy-act-2017.pdf

Requiring the voluntary CAMTC certification is unreasonable and unnecessary, especially given that:

 

9) The Massage Therapy Act failed its mission.

BlueSky Consulting was commissioned by the CAMTC to evaluate the Massage Therapy Act and in December 2016 reported that the Massage Therapy Act:

  • has not meaningfully curbed prostitution and human trafficking
  • has not made the public meaningfully safer
  • has not meaningfully unburdened the courts

See: www.camtc.org/media/1321/camtc-licensure-feasibility-study-report-20161221-final.pdf

CA Legislation never should have suspended the Constitutional Rights of citizens to begin with, but BlueSky’s report illustrates that the Massage Therapy Act has proven to be an absolute boondoggle.



10) A Denied, Suspended or Revoked CAMTC certification is a career stopper.

Cities that don’t require the CAMTC certificate deny local massage permits to massage therapists who have had their CAMTC application denied, or revoked or suspended their certification. Most employers now require the CAMTC certification even in cities that don’t regulate massage at all. The only massage therapists who can survive a suspended or revoked certification are those who have enough capital to move their practice to a non-regulatory city and effectively market and build it, but those cities, and those therapists, are few and far between.

 

11) Those making claims through the CAMTC cannot be sued for defamation.

Defamation requires “unprivileged” statements such as those made through newspapers, magazines, TV, etc. Even false claims made through tribunals such as courts, the CAMTC and City Council meetings are considered “privileged.”

 

In short:

If your CAMTC certificate is denied, suspended or revoked you’ll have to find another career, and any serious declaration made against you through the CAMTC is all it takes.

Your only hope of protecting your certification is if claims are made against you in Court so you can at least be afforded the appropriate standard of proof. Even if you can drop $20,000 - $50,000+ any time, if your certificate is revoked, your only hope is to have it reinstated or find another way to make a living.

The only sure defense against this nightmare is to not get the CAMTC certificate to begin with and make sure you have enough capital to start your own business in a city that doesn’t require the certificate.

 

One simple solution solves many problems:

The PSD accounts for 11% of the CAMTC’s expense categories but 32% of their budget. Having massage-related claims made through the courts and making disciplinary decisions based on court rulings would not only assure Massage Therapists their Constitutional Rights are observed, it would free up the most significant -and unnecessary- expense the CAMTC has.

The CAMTC already has the authority to deny, suspend or revoke certificates based on court convictions, so it shouldn’t even require an amendment to the Massage Therapy Act to make this very small change in procedure that would make a world of difference in protecting legitimate massage therapists. The resulting savings could be allocated to hiring staff to vastly improve their turn-around time for issuing certificates and approving schools.

But the League of Cities lobbied hard and pressured the CAMTC to create the current process, so it’s likely that the CAMTC Board of Directors won’t change their policies and procedures unless an amendment to the Massage Therapy Act forces them to.

The most widespread criticism against the CAMTC is the extensive turn-around time for applicants.  Beverly May reported at the CAMTC Board of Directors meeting June 8, 2017 that it takes about 75 days for certificates to be issued after applications are received, but the reality is that that it takes 6 months or longer according to the majority of massage therapists who have spoken up.

Even 2.5 months is an excessive wait for applicants to begin their career in CA after completing their education and applying for CAMTC certification. The CAMTC certainly doesn’t volunteer the fact to prospective applicants that it may take half a year or longer. Most therapists are completely unprepared for this reality when they graduate massage school expecting to start their careers a week or two later.

The funds that can be freed up from discarding their PSD’s unnecessary and unconstitutional disciplinary hearings would go a long way in shortening that turn-around time, improve their PR, and likely increase new applications -which the CAMTC desperately needs to counter their unsustainable business model.

The CAMTC Board of Directors meeting today revealed that:

  • New Applications are below budget requirements.
  • January 2017 revenue was 7.5% lower than in 2016.
  • Expenses were up 23.2%.
  • January saw a net loss of $25,009 vs. $86,721 net gain in 2016.

See www.camtc.org/media/1358/board_packet_682017-final.pdf

A 7.5% decrease in revenue with a 23.2% increase in expenses is actually a 30.7% loss. If this remains stable, it'll take some years before their emergency funds expire and they have to shut down. But it's likely they'll fire their CEO before it comes to that, and if a new one doesn't improve things soon enough, they'll be Sunset. So as you can see, there are many reasons why it would be in the best interests of the CAMTC to implement my proposal.

 

Take action to protect yourselves and each other!

1)       Sign this petition: www.thepetitionsite.com/651/915/351/demand-constitutional-rights-for-massage-therapists

2)       Share this with your colleagues and everyone you know who cares about protecting Constitutional Rights and protecting legitimate massage therapists.

3)       Put pressure on the CAMTC Board of Directors to implement my proposal.

4)       Make your City and State Representatives aware of these facts and ask them to support the amendments I’ve proposed here in this article.

5)       Join the conversation at  www.facebook.com/groups/ReformCAMTC