Impact of HB16-1320 and the Colorado Natural Health Consumer Protection Act


HB16-1320 A Bill for an Act Concerning the Regulation of Massage Therapy to Modify Practices That Are Linked to Criminal Behavior
• Link to HB16-1320

• The bill was initiated by the Colorado Department of Regulatory Agencies (DORA) to improve their ability to address human trafficking cases presenting as massage therapy complaints.
• Link to DORA April 2016 FAQ regarding need for HB16-1320

• The necessity for the bill is to close loopholes in existing massage law which are manipulated by human traffickers to escape detection and liability.

• Section 2 of HB16-1320 amends the definition of massage removing acknowledgement of exempted practices.

• Section 4 of HB16-1320 amended and added to the existing Massage Therapy Practice Act – rewording and excluding several previously exempted practices. Allows the ability of the director of DORA to revoke practice exemptions.

Most disturbingly Section 4(2) adds: If there is a continued pattern of criminal behavior with arrests, complaints regarding sexual misconduct, or criminal intent that is related to human trafficking disguised as a legitimate exemption, the director may, at his or her discretion determine that a practice is no longer exempt from licensing pursuant to paragraph (e) of subsection (1) of this section.

• Previous statutes have not exposed exemptions to revocation.

HB16-1320 Section 4 required amending SB13-215 Section 1(6)(q)(II)(B) of the Colorado Natural Health Consumer Protection Act. 
• Link to SB13-215

• DORA has issued a FAQ sheet stating “The changes in HB-1320 simply conform the definition of massage therapy in that Act with the definition in the Massage Therapy Practice Act.” 
• Link to DORA FAQ

• Bill HB16-1320 amends and strikes recognized practices from the Colorado Natural Health Consumer Protection Act.

• The Colorado Natural Health Consumer Protection Act has been amended without benefit of bill introduction or public hearing..

HB16-1320 provides much more than new definitions. It collides with the Colorado Natural Health Consumer Protection Act.

• The Colorado Natural Health Consumer Protection Act (CNHCPA) was enacted ‘to provide an exemption from State regulation for unlicensed complementary and alternative health care practitioners.’

CNHCPA Section 1(2)(e) Because the State recognizes and values the freedom of consumers to choose their health care providers, including the ability to choose a person who is not regulated by the State, the intent of this section is to protect consumer choice and, in consideration of the public’s health and safety, to remove technical barriers to access unregulated health care…

• HB16-1320 can in fact provide technical barriers by allowing DORA the rulemaking ability to revoke exemptions.

• Consumers are in danger of losing the ability to choose their preferred method of alternative and complementary health care at the discretion of DORA.

CNHCPA Section 1(5)(a) A person who is not licensed, certified, or registered by the State as a health care professional and who is practicing complementary and alternative health care services consistent with this section does not violate any statute relating to a health care profession or professional practice act unless the person:
     (I) engages in an activity prohibited in subsection (6) of this section; or
    (II) fails to fulfill the disclosure duties specified in subsection (7) of this section. 

• This section of CNHCPA does not include the rulemaking authority of DORA under the Massage Therapy Practice Act.

• This rulemaking ability accorded to DORA neither protects a practitioner’s ability to perform nor a consumer’s ability to choose. Neither does it aid in the prevention of human trafficking.

• Currently exempted alternative and complementary practices will remain in the Massage Therapy Practice Act by statute– yet subject alternative and complimentary health care practices to rules under the Massage Therapy Practice Act allowing exemptions to be denied at a future date at the sole discretion of DORA.

• Section 4 of HB16-1320 provides DORA the rulemaking ability to determine–at their sole and volatile discretion–rescinding exemptions due to the activities of bad actors performing sex trade and human trafficking activities while perverting the name or description of a current exempt and protected practice.

CNHCPA language consistently and exclusively refers to ‘a person’ or ‘practitioner’ not to an entire practice class.

•HB16-1320 enables the revocation of an entire practice class.

Returning to the language of HB16-1320 Section 4(2) If there is a continued pattern of criminal behavior with arrests, complaints regarding sexual misconduct, or criminal intent that is related to human trafficking disguised as a legitimate exemption, the director may, at his or her discretion determine that a practice is no longer exempt from licensing pursuant to paragraph (e) of subsection (1) of this section.

• Practitioners and consumers should not be held liable for bad actors – law enforcement already has at their disposal the ability to prosecute illegal acts.

• This section concerns itself the revocation of a practice—an entire class or exempted category of practitioners—not the actions of ‘a person’ or ‘practitioner’ as is intended by CNHCPA. The wording is vague, far from narrowly tailored, will not advance the goal of shutting down human traffickers as is the intent, and declines to trace the cascading affect beyond the point of traffickers finding the next exempt practice as a disguise.

• Further, the exemption revocation may well be applied beyond a named practice [such as Reiki] yet could extend to the entire category of [practices using touch or healing touch to affect the human energy systems].

• Section 4 provides a disincentive to report activities that may include aspects of human trafficking disguised as a legitimate exemption — rather than aiding in shutting down and prosecuting a disreputable business practitioners reporting such activity will be incriminating and endangering their own practice.

Law enforcement certainly has a compelling interest in shutting down human traffickers, this however is not the least restrictive means available considering existing laws. This statute well exceeds its purpose and provides an indiscriminate sweep of law-abiding practitioners beyond the legitimate interest to shut down human trafficking.

Consequences of this section can reasonably be foreseen as an entire practice class can no longer provide services to their clients, hospice or service organizations, enduring future loss of earnings while still maintaining the responsibilities of commercial lease agreements, mortgages, taxes and family obligations. Arbitrary revocation of a currently exempt practice can have ruinous effects for possibly thousands of small businesses and practitioners.

The intention of HB16-1320 is noble yet it can have devastating consequences to current practitioners should they be forced to close their businesses due to a discretionary DORA rule change. While consumer’s choice would be revoked and not protected as the Colorado Natural Health Consumer Protection Act intended.