CAMLAW: Complementary and Alternative Medicine Law Blog

Massage and bodywork membership questioned

Massage therapy licensure, certification, and national examination issues are canvassed in a piece questioning membership requirements.

Keith Grant at Ramblemuse, a website focusing on massage therapy educational and legal issues, has sent a link to a post entitled Constitutional Issues Pertaining to Required Membership and/or Use of Required Fees Prerequisite to Licensing on the California Massage Educational League website.

The article's summary states:

This white paper provides a short review of the legal basis for occupational regulation, mentions potential anti-trust limitations in passing, and then takes a deeper look at the limitations on use of private organizations by regulating agencies that may result from the First Amendment guarantees of Freedom of Association and Freedom of Expression. In short, these rights, with some limitations in labor law and anti-discrimination law, presuppose a right not to associate and not to express ideological or political viewpoints with which one disagrees. Although the principles are far broader in the scope of their implications, the regulation of massage therapy is used as a motivation and example for the issues.

Included is a discussion of my old favorite, Dent v. W. Va., a case that upheld the right of the state to determine who it would license to offer health care services, and who could be denied such a health care practice license:

The Supreme Court ruling of Dent v. State of West Virginia, 129 U.S. 114 (1889) set out the principle that the state can limit the practice of occupations when it implements a needed public protection from harms of incompetence and malfeasance. There is thus, embodied in occupational licensing, a fine constitutional balance between freedom of commerce and intrusion of the police power of the state upon commerce for the benefit of the public. In allowing a state to determine public benefit, the standard of rational basis is normally used, except when the law involves a suspect classification that might involve discrimination (e.g. race, gender, national origin).

Dent practiced 'eclectic' medicine, the CAM of his day, which focused largely on botanical practices including those taught by Native American Indians. The state denied him the right to practice because he was not approved by the state medical society, which set educational and licensure parameters. After an appeals process, the U.S. Supreme Court agreed that the state had the right to deny Dent the right to practice health care of his choosing, and also found that he had no Constitutional to practice his version of medicine.

The rule upholds a long line of cases favoring the state's right to regulate medicine over such claimed individual freedoms.

Read the California Massage Educational League for the full analysis relating to massage therapy education, certification, training, and licensure. The piece has a special focus on freedom of association and freedom of expression.
Law Offices of Michael H. Cohen offers general corporate legal services, litigation consultation, and expertise in health law with a unique focus on alternative, complementary, and integrative medical therapies.

Michael H. Cohen is Principal in Law Offices of Michael H. Cohen and also President of the Institute for Integrative and Energy Medicine (also known as the Institute for Health, Ethics, Law, Policy & Society), a forum for exploration of legal, regulatory, ethical, and health policy issues involved in the judicious integration of complementary and alternative medical therapies (such as acupuncture and traditional oriental medicine, chiropractic, massage therapy, herbal medicine) and conventional clinical care. The most recent published book by Michael H. Cohen on health care law, regulation, ethics and policy pertaining to complementary, alternative and integrative medicine and related fields is Healing at the Borderland of Medicine and Religion. This is the fourth book in a series, following Complementary and Alternative Medicine: Legal Boundaries and Regulatory Perspectives (1998), Beyond Complementary Medicine: Legal and Ethical Perspectives on Health Care and Human Evolution (2000), and Future Medicine: Ethical Dilemmas, Regulatory Challenges, and Therapeutic Pathways to Health Care and Healing in Human Transformation (2003).

Health care and corporate lawyer Michael H. Cohen has also been admitted to the Bar of England and Wales as a Solicitor (non-practicing), adding to Bar membership in four U.S. states.

Trackbacks (0) Links to blogs that reference this article Trackback URL
Comments (0) Read through and enter the discussion with the form at the end

Michael H. Cohen, Esq.; 468 North Camden Dr. | Beverly Hills, California 90210 | 310-844-3173