Colorado

Massage Therapists Evaluate A Predictable Response from DORA Colorado law requires that individuals or groups proposing legislation to regulate any occupation or profession first submit information to the Colorado Department of Regulatory Agencies (DORA) for the purpose of sunrise review. Sunrise review is essentially an analysis of an occupation with the intent being to only impose regulation on occupations when it is necessary to protect public health, safety, or welfare. DORA can provide four basic recommendations in this review: no regulation, a licensing program, a certification program, or a registration program. A licensing program is most restrictive, providing for entry-level competency standards, title protection, and practice exclusivity. State certification programs are typically dependent on a practitioner obtaining a private credential that is then recognized by the state and includes title protection. A registration program is the least restrictive; practitioners voluntarily register with the state and are then able to use a protected title. The massage community, represented by Associated Bodywork & Massage Professionals (ABMP) and the American Massage Therapy Association (AMTA), submitted a sunrise application on May 31, 2006. There are approximately 6,000 massage therapists in Colorado. A licensing program was proposed for massage therapists in order to define a scope of practice, establish entry-level qualifications, clear titles that the public would understand, and allow for a process in which practitioners would be held accountable for harmful treatment of a client. Only regulation can provide a clear avenue for public complaint. DORA released the sunrise review regarding the regulation of massage therapists on October 15, 2007. The review recommendation was not to regulate massage therapists. Massage therapists’ sunrise review was the only health profession application due to be released this year; however, massage therapy is not the first profession to receive a negative recommendation. In previous years, DORA reviews have consistently concluded that regulation is not necessary. DORA also recommended the repeal of the Respiratory Therapy Practice Act in 2004. In 2005, the athletic trainers received a negative recommendation; and in 2006, occupational therapists suffered the same fate. After submitting three (1993, 1998, 2005) separate sunrise applications, naturopathic physicians finally received DORA’s recommendation for state regulation after several high profile deaths involving naturopathic physicians were made public. If a bill were passed, it would affect about 100 naturopathic physicians. Failure of Focus Though it is not surprising the review did not recommend licensing or any other form of state regulation, it is surprising how shortsighted the report seems. As the applicants, ABMP and AMTA are disappointed that certain issues we brought forward in our sunrise application were not addressed. After almost sixteen months of evaluation, we expected the report to contain a more thorough look at the profession in Colorado and we were frustrated by some of the report's conclusions. For example, only one reference to prostitution and its impact on legitimate massage therapists was contained in the sunrise application and was included only to illustrate the historical use of massage therapists’ licensing programs to set apart legitimate massage therapy from those hijacking the title for illicit purposes. The sunrise application stated that because of prostitution and human trafficking issues, local governments have developed ordinances to license massage therapists. Massage therapy is the only health profession that is regulated at the local level. Somehow, these statements were misinterpreted to mean that the goal of licensing was to eliminate prostitution and became the focus of DORA’s review. The report concludes that “although this sunrise review discovered the primary type of harm caused by massage therapists is sexual misconduct, there is no evidence as to how prevalent sexual misconduct is among massage therapists.” We believe that it was irresponsible of DORA to make this conclusion based on erroneous extrapolation of data. It is the opinion of the applicants, and the evidence supports, that unsavory people who have hijacked the term “massage” and who are masquerading as massage therapists commit these crimes and that the profession suffers the consequences. A case that illustrates the importance of licensing as a means to guard against abuse was included in DORA’s report. On page 28, the report reviews the case of a Grand Junction massage therapy consumer who agreed to talk to DORA after contacting the massage therapy associations about her horrifying experience. The alleged “massage therapist” in this case was not a member of either ABMP or AMTA, both of whom verify education and training prior to membership. Without verifying that this offender is indeed a massage therapist who has had education and training, he very well may be using the title as a vehicle to abuse clients. Although DORA was clear that the only instances of harm they were interested in was physical harm, the Department seems to take lightly the reports of physical harm recorded by the two largest massage therapy associations’ liability insurance companies. Because of the Health Insurance Portability and Accountability Act (HIPAA) regulations, the carrier report omitted names of individual massage therapists and injured clients; DORA was not satisfied because it was unable to independently verify the accuracy of the report. DORA responded that “This evidence of physical injury must be tempered, however, due to the limited nature of the information provided.” We are confident however, of the accuracy of the information provided to DORA, as insurance companies do not pay claims they are not required to pay. The report concluded that “the evidence revealed during the course of this sunrise review shows that massage therapists can cause harm, that harm would not be avoided through regulation because the harm is sexual conduct, it is not an issue of competency.” All of the instances of harm (31 cases) reported by the liability insurance companies were of physical harm, not sexual conduct (7 cases). The liability insurance carriers do not pay claims based on sexual misconduct; indeed, it is specifically named as an exclusion to massage therapists’ liability policies. The Department determines in the report that the Attorney General’s Office (AGO) reported receiving nine complaints in the last several years, but that the AGO office was unable to provide additional details. It is unknown if DORA attempted, but was not able to, investigate these complaints further, or if the issue was dropped. As part of its sunrise process, DORA requests information that is especially difficult to obtain in an unregulated state. When there is no regulatory board to complain to, consumers don’t know where to file a complaint. The report mentions massage therapy related complaints filed with the Office of Barber and Cosmetology, Office of Physical Therapy, and the Board of Chiropractic Examiners. Although none of the complaints filed indicated physical harm, it does demonstrate that consumers don’t know where to go to file a complaint and that consumers could potentially be harmed by not having a regulatory body in Colorado. Since it is DORA’s policy not to consider national trends or examine any of the 39 states that do license massage therapists, it is difficult to provide definitive answers when in an unregulated state. The report relies on information obtained from a survey conducted by DORA in which 4025 massage therapists were emailed surveys, and 473 responded (11.75%). The survey concluded “only” 11.8 percent of the respondents indicated that they had first-hand knowledge of harm caused to a consumer by a massage therapist, and that 11.8 percent was not a significant enough number to warrant statewide licensing. At what rate of public harm is licensing warranted? DORA does not indicate what this magic number might be. Since proving harm is the only qualifying factor in their decision making process, it may be helpful for them to publicly state what percentage of the public being injured is beyond an acceptable threshold, and causes them to decide that licensing is needed. Failure to Recognize the Growth of CAM Despite the fact that massage therapy is the fastest growing complementary and alternative medicine (CAM), the sunrise review does not address it. According to the Office of Acupuncture (OOA) website, there are currently 777 licensees. OOA states that this number indicates a strong and consistent interest in the practice of acupuncture and suggests the trend in consumer use of alternative health care providers is not a passing interest, but a significant change in the attitudes of consumers toward health care. In the sunrise application, the applicants noted several major national research studies, including one being conducted at the University of Colorado at Denver Sciences Center to determine if massage therapy reduces the burden of cancer symptoms for patients with advanced disease. This is a $1.2 million study funded by the National Institutes of Health. If the study shows that patients do experience better quality of life, it could become standard patient care. A state licensure program would ensure an entry-level standard that will encourage other health care professionals to refer patients for treatment. Impact on Massage Therapists and Consumers Massage therapy has evolved over the years and is a consumer driven, well-used for of health care. It was disappointing that DORA failed to recognize it for what it has become. The massage community has completed the first step in the long process of obtaining occupational regulation in Colorado and is determined to develop legislation to regulate massage therapists. While a report from DORA recommending licensing for massage therapists would have made this process easier by serving as a tool to educate the Colorado State General Assembly, we believe the negative recommendation is typical of DORA’s anti-regulation bias and trust that the General Assembly will be interested in the bigger picture.