Is regulation by massage law a malregulation of reflexology practice?

Do massage laws that encompass reflexology follow the standards basic to licensing and regulating professions? The following is a comparison between the typical regulation of reflexology by massage law and one state's criteria (State of New Mexico, "Sunrise Act," 12-9A-3: Criteria for licensure and regulation, effective February 1, 1994.)

 

Example of one state's criteria for licensing and regulation

Malregulation of Reflexology ?

"In determining whether to enact legislation to create a new board or commission to provide for licensure or regulation of a profession or occupation that is currently not subject to state licensure or regulation, the legislature shall consider whether the following criteria are met:

Typical Massage Law

"A. unregulated practice of the profession or occupation will clearly harm or endanger the health, safety or welfare of the public, and the potential for harm is easily recognizable and not remote

The typical state massage law addresses safety issues of massage, a nude service, and imposes the mechanisms specific to those issues on reflexology practitioners. Reflexology is a non-nude service. The laws create no mechanism to address safety issues inherent to reflexology practice &emdash; such as practicing medicine without a license.

"B. regulation of the profession or occupation does not impose significant new economic hardship on the public, significantly diminish the supply of qualified practitioners or otherwise create barriers to service that are not consistent with the public welfare or interest

In areas where such laws have been in effect over time, the cost of services has increased and the quality of services has decreased as experienced practitioners are forced out of business. The laws create state-mandated monopolies over reflexology practice to practitioners who are not required to have any qualifications to practice. The supply of qualified practitioners has been nearly eliminated in New York City by the state law.

A barrier is created for the individual who seeks to exercise his or her first amendment right to provide or have provided the health belief service of choice. Why is the state mandating that a belief system be professionally practiced only by those who are licensed for another profession? A barrier is erected for the experienced service provide who cannot afford the time or money to receive education in another profession to continue his or her established business. Higher regulatory fees are imposed on the reflexologist commiserate to the regulatory task of overseeing a nude bodywork service. (Chicago reflexologists pay the city massage licensing fee of $600 a year. Illinois nurses pay $10 a year for state licensing.)

"C. existing protections available to the consumer are insufficient, no alternatives to regulation will adequately protect the public and this licensure or regulation will provide that protection and mitigate the problems

A full and fair disclosure system of business regulation would more adequately protect the public and mitigate the problems of reflexology as a non-nude profession. The existing massage law imposed on reflexology practitioners creates more safety to the public problems than it solves. The existing laws do not exist the issue of clearly defining separate bodywork practices to ensure that fair practices acts are not violated and that the consumer receives the services he or she contracts for.

"D. functions and tasks of the occupation or profession are clearly defined and the occupation or profession is clearly distinguishable from others already licensed or regulated

The functions and tasks of a reflexologist and massage therapist are clearly defined in textbooks, education, and professional associations.

"E. the occupation or profession requires possession of knowledge, skills, abilities that are both teachable and testable and the practitioners operate independently and make decisions of consequence

A separate reflexology body of knowledge is detailed in twenty books and by two national organizations. The states have failed to prove that there is an overwhelming need to regulate reflexology and they have failed to show that it has adequately regulated reflexology.

The states are certifying the competency of bodywork professionals without following the educational standards established for bodywork professions: completion of a course of study in the professed field of study in a curriculum specific to the profession or from a credentialed school.

"F. the public needs and can reasonably be expected to benefit from the assurance from the state of initial and continuing professional competence; and

The laws include no educational requirements of reflexology providers. Normally, "legislatively defined scopes of practice ensure that practitioners confine their interventions to those they are trained to offer." Is the public put at risk by the state-mandated possibility of a substandard professional reflexology service provider? Is the state legally liable for actions resulting from the certification of competency of untrained individuals to practice a profession?

"G. the public cannot be effectively protected by other means in a more cost-effective manner."

A full and fair disclosure system would provide the information necessary for the consumer to make an informed decision in the purchase of services. A notice posted in the workplace would notify the consumer of public safety issues and means to comment on services.

ŠKunz and Kunz 2003
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