Magazine

After the Fact: 
The
Impact of State Regulation, Part One

By Kelle Walsh, Managing Editor
In the 1990s the number of states that regulated massage therapy more than doubled, from 14 states in 1989 to 29 states plus the District of Columbia just 10 years later. Since then, four more states have passed regulatory laws - Mississippi, Illinois, Kentucky and Arizona. Industry experts speculate that in time most, if not all, states will regulate massage. 

Proponents of regulation see it as a way of: untangling massage therapy from a net of city and county regulations aimed at curbing prostitution; standardizing a wide range of education levels among therapists and ensuring a baseline of knowledge and skill; and earning professional credibility as health-care practitioners.

Opponents of state regulatory laws say that the laws: limit the range of massage-therapy practices by requiring what they believe are arbitrary education standards; legislate an agenda promoted by one group; and most of all, that there has no been no proof that state laws are needed to protect the public.

The shift away from a relaxation model of massage and toward a standardized, regulated version has come at a cost. Legislative efforts have sparked the most divisive debates to ever face the profession.

For seven years, Danny Holland evaded the law. The self-taught massage therapist worked on both male and female clients in Charlestown, South Carolina, despite restrictions in the state’s massage-parlor statute that made it illegal to perform cross-gender massage. Holland, like many of his peers, tried to stay below the legal radar in order to do the work he loved and that his clients needed.

"We just ignored [the law] and hoped it would go away," Holland says.

During the 1980s and early 1990s, while massage therapy’s acceptance grew throughout the country, therapists in South Carolina were still bound by the Massage Parlor Act of 1976, which was created to curtail prostitution. In addition to restrictions on cross-gender massage, the law also required that practitioners undergo testing for sexually transmitted diseases (STD) each month. According to Holland, no therapist he knew agreed with the law, but most didn’t think they could change it.

Yet when Holland heard about an effort to establish state licensure just for massage therapists, instead of feeling relieved, he was afraid.

The proposed law required that therapists have 500 hours of education and pass the National Certification Exam for Therapeutic Massage and Bodywork (NCETMB) - qualifications that self-taught and apprenticed massage practitioners like Holland didn’t have.

"It scared us to death because we didn’t have the formal education," Holland says. "I thought I was going to have to go back to construction work."

The author of South Carolina’s massage law, Carolyn Talley Porter, recalls getting little support for the effort from the state’s massage community. "I couldn’t get any massage therapists to help me," she says. "Everybody was negative. I had some people say, ‘Just leave it alone.’ I did a lot of these town meetings and I thought people were going to hang me."

But Talley Porter was determined. "I told people, ‘I won’t work under that prostitution law. You might work under it, but I won’t. And if you want to stop me, you can show up before the [legislative] committee when the bill would be introduced," she said.

She struck a nerve. Instead of fighting the effort, after about a year, therapists began joining Talley Porter on her weekly pilgrimages to the state capitol to educate legislators about massage therapy.

One of those therapists was Danny Holland. Holland explains that when he learned that the proposed law included a provision to grandfather-in massage therapists who didn’t have the 500 hours of education but who could prove that they had been practicing massage for more than a year, he decided not to sit on the sidelines any longer. "What really kept me in was knowing that I wouldn’t have to go to school. When I found that out I got involved," he says.

The South Carolina Massage Practice Act passed unanimously in 1996, successfully replacing the state’s massage-parlor law. Talley Porter says that one-time opponents of the licensing law became its biggest fans, and saw their businesses grow.

"Once the therapists could say, ‘I’m a licensed massage therapist,’ it brought more credibility to the picture," she says.

Holland agrees. "I’ve had some folks ask, when they first call, ‘Are you state licensed?’ [People] are checking you out," he says. "Saying that I have a state license has changed a lot of people’s minds about massage."

The battle lines
South Carolina’s success in wiping out an oppressive, inappropriate massage law came relatively easy. One person’s unwavering conviction that the law could be changed was enough to motivate others to fight for their dignity. But the battle is rarely so swift - nor the issues so clear.

In the past 10 years, state regulation of massage therapy has fueled the industry’s most heated debate. Differences abound about the value of state regulation, with supporters and opponents offering equally passionate arguments for their beliefs.

The "pro" camp cites the following motivations for state regulation: unequal and oppressive local regulation; greater professional respect and visibility; to ensure a baseline level of education and skill; a desire to work with the medical community or to bill insurance; and perhaps the most controversial argument, the need to protect the public from less-educated massage practitioners who could cause physical harm.

For their part, opponents say that state oversight of massage therapy is not the way to go. Regulation, they say, squashes the creative art and intuitive spirit of massage; limits the diversity of styles and personalities in the field; and imposes an "arbitrary" designation of 500 hours education as the standard for competency. But the biggest argument against state licensure, they say, is that its supporters have failed to show proof of harm caused by massage therapists who do not meet their criteria.

Local rule
In most states, ordinances that regulate massage therapists were designed to stop prostitution. For example, prior to the state massage-licensure law that passed in 1998, practitioners in Kansas City, Missouri, were required to have 1,000 hours of training that included an apprenticeship, and passage of annual physicals and AIDS tests. Licenses were issued by the same office that issued licenses to cab drivers and exotic dancers. Meanwhile, many of the surrounding communities required just 70 education hours, or the equivalent "of a basic Swedish massage class," says Kansas City massage therapist Jennifer Thorton. "Some cities didn’t require any education hours." The nearby city of Liberty also required an annual physical, but from a physician within the city’s health department. "You couldn’t even go to your own doctor," Thorton says.

In California, where the regulation debate is in full swing thanks to a massage-therapy law poised on the docket of the state legislature, the picture is much the same. Massage ordinances range from requiring as few as 75 hours of education in Danville, to 1,000 hours to practice as a "holistic health practitioner," which recognizes advanced levels of massage and other somatic therapies, in San Diego. Some cities require that the therapists take annual STD tests and pay fees that can run upwards of $2,000. Since permitting requirements vary from city to city, massage therapists who serve clients in more than one community often must pay for multiple permits to practice.

Regulation advocates argue that state licensure is the most effective way to quickly override these unequal and often disparaging local laws. Of course, cities and towns maintain the right to regulate massage-therapy businesses, including where they can open, what kinds of equipment (windows on doors or multiple sinks for example) must be on hand, and their hours of operation.

But in states where massage therapy is designated a health-care profession, municipalities can only impose the same zoning restrictions as they do on other health-care businesses. "[State regulation] helps on a local level, certainly," says Betsy Krizenesky, a certified massage therapist in Wisconsin, where massage therapists are designated as health-care providers. "You can’t tell other health-care professionals how many sinks they should have."

Reaching the limit
In the mid 1990s a shift occurred in the regulation arena. While the AMTA, whose members are often on the front lines of the regulatory movement, does not have an official policy advocating state regulation, according to Denise Logsden, former government-relations chair of the AMTA, it does state that it "strives for a fair regulatory climate." This could mean working to change laws on a local level, a state level or choosing "no regulation if it’s working [in that community]," she says.

But the association also maintains the position, according to Logsden, "that state-governing regulation of massage therapy is a desirable means of meeting the needs of the public and the profession."

In the 1990s, therapists in non-regulated states worked to change local laws one community at a time, and used tools like the AMTA model ordinance and the guidance of Associated Massage and Bodywork Professionals’ (ABMP) Legislative Services Department.

But as more states passed laws that rescinded local regulations, the focus seemed to change to trying to affect change on the state level. "This was true in Virginia, and I think most people [trying to change local regulations] think this," said Logsden, who as a resident of Virginia, helped to implement, in 1996, that state’s law to certify massage therapists. "Since it’s going to have to be done city by city, and it’s more efficient, why not take care of it on a state level?"

"In North Carolina it was a matter of it being time consuming [to try to change every local ordinance]," says MK Knollmeyer, the former chair of the steering committee of the North Carolina Law and Legislative Task Force, which helped pass that state’s massage and bodywork law in 1998.

Knollmeyer also says that changing local laws does not guarantee uniformity in regulation from one city to the next - a problem for both massage therapists who travel and consumers. "[For] the consumer, there is not necessarily the same level of education or credentialing" of massage therapists working under local regulations in different communities, she says.

Beverly May, government relations chair for the California chapter of the AMTA, described her decision to work for a state law in an April 2003, posting to an online forum for massage therapists and bodyworkers: 

"After 15 years of working on reform of local regulations with so little progress, and in some cases laws getting worse, I finally reached my limit. The progress we have made is that, unlike 10 years ago, now local police, sheriffs and counsel members do acknowledge the legitimate practice of massage. However, they still feel that if there is a problem with prostitution under the guise of massage, that enforcement of the state vice laws is not enough. As a result, they pass, or revise ordinances that still subject massage therapists to onerous regulations and fees, in some cases making it difficult or impossible to work openly. This is not acceptable to me and many of us."

In California, which has a number of charter cities that can decide their municipal affairs by the state constitution instead of the state laws, there has been speculation that even if state licensing passes, massage therapists may still have to abide by local regulations in those cities.

"California courts have ruled in regards to professional licensing that, while the state has the right to set eligibility requirements, that local agencies retain a considerable latitude to set conditions of use and to assess fees," says Keith Eric Grant, a California massage-therapy educator, writer and political commentator. "Such considerations can have profound effects on the ‘trickle down’ of state regulations to the local level that act to separate reality from theory."

Bob Benson, president of ABMP, counters that the "home rule" fear of charter cities choosing to override state massage-therapy licensing laws is unlikely. "The professional advice we have received is that pre-emption could only fail to apply if a city’s home rule charter contains specific language reserving for the city the right to regulate and license massage therapists or health-care professions generally. Though it’s possible some may exist, I’ve yet to see a city charter explicitly mention licensing of massage therapists or other health-care professionals."

Benson continues. "We get queries about local massage regulations with some frequency from members practicing in states lacking statewide massage-licensing regulations, but none of us can think of a single instance in which a member voiced a problem about local massage-licensing regulation after statewide regulations became effective," he says. "In other words, pre-emption of local laws by state massage licensing regulation seems to be working."

Harm or hooey?
Perhaps the most controversial argument for state licensure is that only massage therapists with a modicum of training, 500 hours being the industry standard, are competent to touch clients safely and effectively. The "public protection" criterion is often required by states in order to establish licensure for a profession.

"Anyone can hurt anybody, you have to know the appropriate ways to touch, when not to do massage, when to refer, the type of pressure that you need, the type of therapy that you can do on that person," says Mary Donker, a former nurse and a current L.M.T. in Louisiana, and the owner of the Center for Pain Relief in Metairie. 

But to this argument regulatory opponents say, "show us the proof."

Donald Schiff, a licensed massage therapist in New Mexico, sat on the committee that drafted his state’s licensing bill, enacted in 1991. "I thought people were being injured by incompetent therapists," Schiff says. "It turns out I was wrong. Actual physical harm from massage is extremely rare. Unfortunately, the reality of licensing didn’t match our starry-eyed expectations, and I have since become convinced that licensing is unnecessary and onerous."

Early this year, a review of West Virginia’s massage-therapy licensure board seemed to back up the "no-proof-of-harm" argument. "The review has found no compelling evidence to support continued licensure of this profession because there is low risk of physical harm if the profession were unregulated," the report states.

Similar findings have been reported in Georgia and Kentucky (although the latter state just passed a state licensing law this year).

Even some regulation advocates say that the risk of physical harm from massage is small, although they do advocate that more education is always better than less.

"As a majority I don’t think that massage therapists hurt people, but I think there are unique cases [that they need to be aware of] like don’t push hard behind the knee because you can put strain on the arteries, and that sort of thing," says Karen Lewis, owner of the Blue Sky School of Professional Massage and Therapeutic Bodywork, with three campuses in Wisconsin.

"Some people need the deep-tissue work, some need the light touch, or craniosacral therapy, or the reiki or polarity," she continues. "But [massage therapists] need to have the knowledge to work with each individual person."

In California, regulation proponents have opted to try and broaden the definition of harm.

"I’m not building a case on physical harm,? AMTA-CA’s Beverly May told MASSAGE Magazine. "I am taking the approach that in much of the state massage is already regulated, and that if that must be, uniform state regulation is preferable to hundreds of adult entertainment ordinances, which are ineffective and costly to local governments to enforce, and take public funds from more needed uses. Public harm occurs when clients unwittingly enter a sex business [and] the fact that afterwards, they are unlikely to ever go for a massage, or to only go to the high-end spas, causes economic harm, [and that] lack of access to home appointments, in most cases at all, in others where prescription is required, is harm."

Meanwhile some regulation advocates say that proof of harm is available, even if is not documented in a study. "You have to advertise [to find it]," says Logsden.

Logsden says that when massage therapists were preparing Virginia’s state law, they put ads in local newspapers seeking clients who had been hurt in a massage session. There were ample responses.

"I saw one [client] who had burns on her from hot packs administered by a therapist from a 200-hour program [who was] not properly trained to use them," she says.

In another instance, an enthusiastic graduate of a 200-hour massage-therapy program set up a massage chair in a local gym. A man who had just finished a vigorous workout sat down and the therapist began vigorously working the area around on the man’s vagus nerve. "He had not been taught about the vasovagal response [and] worked so hard on the guy that he passed out and fell off the chair," says Logsden. "Somebody who had more [training] in physiology would not do vigorous friction massage on someone’s neck like that."

Regulation supporters also argue that today, with massage therapy used for an increasing array of physical and medical conditions, therapists need to have more knowledge about anatomy and pathology than they once did.

"[When I started] I thought I was as good as anyone out there, I thought I knew more than I did," say’s South Carolina’s Danny Holland. "Because of the workshops I’ve been attending, by having to do the CEUs, it’s improved my business and my ability."

Limiting opportunity?
But opponents like Schiff believe outlawing the practice of massage therapy unless you have met the education and testing requirements and earned a license, is a disservice to those who want to explore the field. Indeed, many of the therapists interviewed for this story started out with a hodge-podge of training, including weekend workshops, book learning, apprenticeships and self-teaching.

"[Before licensure] new practitioners had the opportunity to take a few classes and try out their skills to see whether the massage/bodywork profession really fit their inclinations and skills before investing in an expensive private vocational education," Schiff says. "Now they have to spend several thousands of dollars before finding out whether they have what it takes."

"If I had to have had 500 hours [of education] to start out, I probably wouldn’t have gotten into massage," says Craig Denega, president and founder of the Ancient Healing Arts Association (AHAA), which formed earlier this year to oppose national regulatory efforts. "You are not allowed to [do apprenticeships] anymore. And [the laws] break everything down to standardization and legislated mediocrity."

But can the "learn-as-you-go" style of massage therapy work in today’s regulatory climate?

Delaware massage therapists work under a tiered regulatory system where they are designated as either licensed massage therapists or certified massage technicians. Licensed practitioners, who graduate from a 500-hour massage program, pass the NCETMB and take 24 hours of continuing education every two years, are allowed to treat people with medically diagnosed conditions. Certification, which requires, as of July 2004, 200 hours of education, up from 100 hours, allows technicians to work on anyone other than those people with medically diagnosed conditions.

Rob Eppes, L.M.T., is heading an effort raise the minimum education requirement for technicians to 500 hours, although they would not have to sit for the NCETMB nor take CEUs.

"I think that is just the right thing for the profession as a whole," he says. "The difference between 100 and 500 hours is so disparate, you can’t make any logical assumption that a person with 100 hours [of education] would have the entry-level skills to practice in the profession."

Eppes says that this discrepancy is apparent in the continuing-education classes offered through his business, The Massage Center in Wilmington. "I have had multiple complaints from instructors of the course we offer that some students do not have the rudimentary knowledge required to take [the] classes," he says.

Massage therapist and school owner Deb Jedlicka was one of the people who sought a state law in Delaware. The tiered law, she says, came about from a desire to accommodate all massage therapists and not limit anyone’s right to practice. She now regrets this action.

"I’m just so sorry that there were so many practitioners who were disillusioned about massage education, and who thought just a little bit was enough," she says. "It wasn’t."

Jedlicka says that in her school, the Deep Muscle Therapy School and Center, there is a difference in the breadth of knowledge of graduates from the 200-hour program and the 600-hour program.

"The [600-hour program graduates] are more well-rounded as individuals with some kind of medical backing," she says.

She also says that the demand for the more highly educated graduates far surpasses that for the 200-hour program graduates.

"We are finding with our 200-hour graduates, it’s very hard to place them," she says. "There are not a lot of employers, and the ones there are want graduates with 500 hours [of education] at least; they want the licensed individuals."

The school has recently decided to increase its programs to 500 and 850 hours. Jedlicka disagrees with speculation among some critics that increased education-hour requirements benefit the schools more than they do students, or the public.

"Even our accrediting agency is saying that [the 200-hour program] is not a viable program anymore," Jedlicka says. "Over the last five years we really evaluated [this]. First it was 100 hours, then 150 and then 200. It’s just not enough to get in what the student needs to know."

"For us it’s not about making more money, it’s about helping students applying to viable programs that give them jobs," she adds. "It’s about quality education."

Find out what your state regulations are.

Continue with Part Two: Exploring the different levels of regulation and look at how state licensing efforts have impacted non-massage bodyworkers. 


See Issue 106

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