Protect Yourself & Your Practice

Protecting Yourself, Protecting Your Practice: A few tips to help you better protect yourself, your practice and the massage therapy profession.

By Robert E. Armstrong

Every profession comes with situations that might give practitioners pause, and massage therapy is no different. Whether just entering the profession or a veteran provider of massage therapy, confronting situations that give rise to questions and confusion isn’t uncommon.

One of the greatest benefits of being a member of a professional association such as the AMTA is that you have access to a wide variety of information that can help you navigate these uncertainties. In this article, we’ll have a closer look at some of the more common questions that arise.

Does AMTA staff render legal advice to members?
In a word—no. AMTA’s volunteers and staff work hard for the rights of massage therapists, through its Board of Directors and state chapters, as well as various initiatives of the Government and Industry Relations department. The association, however, does not offer legal advice to individual members. If you have a question you feel requires legal expertise, one option is to contact your state’s local bar association, which will often have an attorney referral service. This service is specifically set up to help individuals find competent legal representation. The American Bar Association can connect you to your state's information.

You can also turn to your local chapter leadership to find other AMTA members who may have faced a similar situation. AMTA chapter contact information is available to AMTA members.

What is the difference between an independent contractor and an employee?
For fairly comprehensive treatment of this subject, see the article “Classified Information” in the Spring 2009 issue of Massage Therapy Journal (mtj). (You can access this article online, as well, by visiting www.amtamassage.org/mtj.) In addition, watch for AMTA’s Online Course titled "Knowing Business Can Mean a Better Practice" to be available in May 2010. (You can access this AMTA Online Course, when available, by clicking here.)

Perhaps the most important reason for being clear on this subject is how the Internal Revenue Service views each of these employment classifications. For example, if you’re an employee, the employer must generally withhold income taxes, as well as pay Social Security and Medicare taxes.

In very general terms, if the establishment where you work controls your hours, books your clients, handles the financial transactions, then you are in most circumstances an employee. If, on the other hand, you control your appointments and book your own clients, you are most likely an independent contractor.

How can I minimize the potential for legal action to be taken against myself or my practice?
The single best way to avoid problems is to really know your client and to be very clear with your intentions and actions. Doing so will build trust, which is a key component in a good professional relationship. Clear communication coupled with always obtaining informed consent from clients, can virtually eliminate the risk of litigation.

From a client satisfaction perspective, make sure you employ good sound practices and, when possible, give your client what they ask. For example, strictly enforcing the terms of gift certificates and refund policies might not be worth jeopardizing the professional relationship you’ve worked hard to establish.

Is there a minimum age a client must be to receive massage therapy?
With the multitude of studies that have been done concerning the effectiveness of massage therapy for younger populations (particularly infants), working on minors is perfectly acceptable. For scientific and medical research citations on the efficacy of infant massage, please see AMTA’s Massage Information Center.

When working on this population, however, you are probably going to want to take some additional steps to both protect yourself and make the clients feel safe and secure. For example, you’ll want to get a signed consent form from the parent or guardian of the minor. Along with permission to provide massage therapy, this consent should include a detailed description of the proposed services outlining expectations and intentions.

If you need an example of a thorough intake form, please visit the professional development section of AMTA’s Web site at www.amtamassage.org.

Can I fire a client?
Yes, and you should when the situation warrants you to sever your professional relationship. In this situation, keep your reasons as general as possible. You might simply say you don’t believe you can provide what the client wants or needs, and leave it at that.

It is suggested that you do not want to say or suggest anything that might be perceived as discriminatory in terms of race, age, sex or religious affiliations. In all instances, do not engage in a debate with the individual. (For more specific information, please see the article “Ethically Speaking” in the Fall 2002 issue of Massage Therapy Journal (mtj).)

Where should I look for information concerning whether a modality is within the scope of practice?
The first, and perhaps best, place to look is the statute of the particular jurisdiction in which you practice. A list of the state practice laws and state massage therapy regulatory board contact information is available here.  The state of Illinois, for example, defines massage therapy this way:

“A system of structured palpation or movement of the soft tissue of the body. The system may include, but is not limited to, techniques such as effleurage or stroking and gliding, petrissage or kneading, tapotement or percussion, friction, vibration, compression, and stretching activities as they pertain to massage therapy. These techniques may be applied by a licensed massage therapist with or without aid of lubricants, salt, or herbal preparations, hydromassage, thermal massage, or a massage device that mimics or enhances the actions possible by human hands.”

Most statutes will also illuminate what is prohibited, which in Illinois includes the diagnosis of a specific pathology or those acts of physical therapy or corrective measures that are outside the scope of massage therapy as defined.

Along with how your state defines scope of practice, you should also be familiar with what your insurance provides coverage for and what practices are excluded in your policy. For a comprehensive overview of AMTA’s insurance policy, see the article “Managing Risk” in the Winter 2009 issue of Massage Therapy Journal (mtj), or look for the CE course of the same name at www.amtamassage.org.

What is a non-compete clause?
When you work for another massage therapist or are employed by a practice or spa, as an employee you may be asked to sign a non-compete agreement. Or, alternatively, a non-compete clause will be a standard part of your employment contract.

These clauses are meant to prohibit an employee from competing against their employer for a specified length of time and in a specific, limited geographical area.

You should always work from the assumption the agreement will be enforced, particularly if you are well-compensated and the terms are reasonable, such as three years or less and for a geographic area that is small and specific, like a town or city.

A non-compete clause is another instance when you are going to want to understand the laws that govern the state in which you practice. California, for example, doesn’t allow non-compete agreements at all. Also, today’s tough economy will cause courts to look closely at contract provisions that are overreaching, unfair or prevent you from earning a living.

What should I know about contracts?
The answer to this is fairly easy: find a good local lawyer to advise you before signing any important contract, including leases, purchase contracts and employment. You need to understand the parties involved, the terms, what’s involved and what kinds of penalties exist in case of breach.

Unfortunately, wading through this information alone without legal counsel can be overwhelming, and erring on the side of caution can save you time and money in the end.

Can I operate my massage therapy practice out of my home?
To get the full picture, you’re going to want to check your local municipal jurisdiction. Generally speaking, if you’re a sole proprietor, running your practice out of your home probably isn’t going to be a problem. The key is the protection of the residential character of the home or apartment.

You should also be cognizant of local zoning ordinances regarding traffic, for example. Before starting, take a trip down to city hall and ask the appropriate questions.

Can I have a sexual relationship with a client?
A consensual, sexual relationship with a client who currently receives massage therapy from you is never appropriate, and violates not only AMTA’s Code of Ethics, but also ethical boundaries you need to maintain as a massage therapist. This ethical provision is grounded in the vulnerability of the client who expects to be in a safe and nurturing environment during a massage therapy session.

Even when the client–therapist relationship ends, pursuing a sexual relationship is fraught with risk. Here again is an instance where you need to thoroughly understand the laws and regulations governing your state and local jurisdictions, as some states will have a time period stipulating how long the client–therapist relationship must be terminated before a sexual relationship may begin. Other professions ban such relationships altogether.

Is my massage license portable, meaning that I can move from state to state without requalification?
The license to practice is state-given. What does that mean? Simply put, your license is issued to allow you to practice in a particular state.
Some states do have special provisions recognizing the fact that an individual moves into the jurisdiction holding a current license from another jurisdiction. In this case, special provisions apply to the individual—though they must still follow the requirements to qualify and get a new license.

There simply is no national, universally recognized licensing or certification program that provides for individuals to move from one state to another and have a license recognized. So, when preparing to move, understand that you may have to secure another license or certification, as well as whatever else a state might require by law.

Know, too, that if you move from a regulated state to unregulated jurisdictions, your license will not be recognized.

Who owns the client and the client’s records of treatment?
Generally speaking, a client can see any therapist they choose. No one “owns” the client, but be aware that if a non-compete agreement exists, you may be limited in certain situations. Also, should you be employed, the client’s records are owned by the employer, so should you leave the practice and a client follows, you won’t have access to the client records established at the place of business.

Of course, the client should have access to their records on a demand basis. These records are discoverable, so when creating and updating these documents, remind yourself that someone may potentially access them at a later date. In other words, you may need these records to defend your treatment decisions, so be thorough and accurate.

What if I am the subject of a grievance? Should I hire legal representation?
The AMTA Grievance Commission has been created and charged with hearing and adjudicating formal complaints against it members and officers. You should be sure you’re familiar with AMTA’s Grievance Procedures, available at www.amtamassage.org, so you thoroughly understand what is expected of AMTA members.

One key point in the procedures you need to know is that even if you retain an attorney, they cannot participate in any hearing that takes place in any capacity beyond a “person of support.” The hearing is meant to be as informal as possible so as not to feel like an actual court proceeding.

These procedures set AMTA apart from other massage therapy organizations, and illustrate your association’s commitment to the profession’s ethics. AMTA dedicates the resources necessary to ensure all members abide by the organization’s Code of Ethics, as agreed upon when joining.

Disclaimer: This article is for informational purposes only with no warranty as to accuracy or applicability to a particular set of facts for circumstances. These answers should not be considered legal advice, and an attorney–client relationship has not been established. You should not act upon any content of this article without obtaining legal advice from competent, independent, legal counsel in a relevant jurisdiction.

Author: Robert E. Armstrong, JD, has his own law practice in Chicago, Illinois. He’s served as general counsel to the American Massage Therapy Association since 1988 and specializes in complementary and alternative medical products and therapies.
 

 

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Kim K., AMTA member since 2003

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