Getting Your Elbows Out: Why Licensing Matters to Massage Therapy

Episode Transcript
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Corey Rivera (00:06):
Welcome to the Rub , a podcast about massage
therapy.
I'm your host, Corey Rivera,licensed massage therapist and
information magpie.
Today we're going to talk aboutmassage therapy regulation.
I promise we're going to tryand make it more interesting
than you'd think.
Well, I've looked at a coupleof dozen state massage laws.

(00:33):
I am most familiar withMichigan's because I've always
practiced here, so you're goingto get a lot of Michigan massage
stuff in this episode.
What exactly is regulation?
The current political landscapehas made it clear that none of
us are taught about governmentor civics anymore.
Civics, by the way, is thestudy of the civil rights and
obligations of citizens adefinition I didn't know until I
looked it up.

(00:53):
So it's perfectlyunderstandable if your idea of
regulation is fuzzy and alongthe lines of the government
makes decisions about things andthen makes rules in a
mysterious process involvingbackroom deals and sausage
processing.
Regulation, it turns out, ispart of legislation, which is
part of the law.
Confused already, cheers.
Let's start from the otherdirection.

(01:14):
Laws are the big bucket in thesituation.
Laws are all the rules that canbe enforced in a location.
There are three types of lawsConstitutional, which are the
foundation a government sits on.
Common law, which is whenjudges make a decision that is
later referenced in courtproceedings, and legislation,
which are laws that are made bya body like Congress or
Parliament.
So laws are enforceable.

(01:37):
Rules and legislation is onetype of law.
Legislation creates authorityfor regulations, which means
regulations are a part oflegislation, which is a part of
the law.
Legislation creates authorityfor regulations, which means
regulations are a part oflegislation, which is a part of
the law.
Regulations provide specificrules for how legislation is
implemented.
So if we were talking aboutfood, which we can all agree is
more interesting, legislationwould be the type of dish and

(01:59):
the raw ingredients, andregulation would be directions
for cooking.
Licensing is part of thecooking directions of regulation
.
Licensing is one way thatregulations accomplish the goal.
Legislation designed.
So laws are enforceable.
Rules and legislation is a typeof law made by Congress.
Regulation is the details ofhow legislation is enacted and

(02:20):
can be enforced.
Licensing is one of the methodsregulation uses to fulfill the
goals set out in legislation.
Phew, let's take a break.
Okay, one type of legislationis called an act For massage

(02:44):
therapy.
It is called a practice act.
A practice act outlines thegeneral framework, recipe and
ingredients for the profession.
These ingredients include scopeof practice, licensing
requirements and disciplinaryprocesses.
Most practice acts, but not all.
Welcome to having 50 states andmultiple territories.
Most practice acts create aboard of massage therapy.

(03:04):
The board decides theregulation for the practice act.
This regulation is called theadministrative rules and they
are the directions for makingthe practice act recipe.
Everything I say from here onabout boards is subject to
change depending on the state orterritory.
An example of an administrativerule is how many hours of
education are required to get alicense.

(03:25):
It is much easier to changeadministrative rules than it is
to change a practice act.
After all, when you're cooking,grating versus slicing the
cheese will still get you agrilled cheese sandwich, but
deciding you're makingcheesecake instead of grilled
cheese changes everything.
Administrative rules aredecided by the board and they
can be open for changes when theboard decides.
Changing a practice actrequires agreement of the

(03:46):
state's Congress, because apractice act is legislation made
by Congress and only Congresscan change it.
In addition to licensing,regulation can include things
like safety standards and it canmake rules for how a profession
practices.
Quick note regulation is not aguideline, a best practice or a
voluntary standard.
Regulation is not optional.

(04:06):
It is a requirement that has tobe followed.
It also isn't necessarily thebest version of anything.
It's simply what was decidedFor massage therapy.
This means that the rules oflicensing aren't always great.
They might not protect thepublic, they might restrict or
burden massage therapistsunnecessarily, or they might
read like the person who wrotethem lives in Victorian England

(04:27):
and has never had a massage ormet a massage therapist.
And with that you might bewondering why the heck we as a
profession would agree tolicensing.
You might further wonder whyHealWell supports licensing in
all states and territories.
If you want thetoo-long-didn't-read version,
it's because it advances theprofession.
And if that answer isunsatisfying and maybe vaguely

(04:52):
annoying, strap in.
There are some very simplereasons to support licensing.
Licensing increases the incomeof a profession by 16% on
average.
Licensing adds legitimacy to aprofession.
Licensing gives the professiona way to establish standards and
ensure that professionals arepracticing safely by creating

(05:13):
discipline and enforcementguidelines.
Public safety is the number onereason licensing gets passed and
it is by far the loudestargument a profession makes.
With no way to control who andhow people practice, there is
endless room for harmful actionsand no consequences.
There's also the question ofwho enforces the rules if there
is no regulation, because thatmeans following the rules is
optional.
The default answer is thepolice, but it isn't a good idea

(05:36):
for the police to beenforcement for something like
false advertising or unhygienicprocedures.
I recently sat in a Michiganboard meeting where they
discussed the case of a mannamed Charles who was
advertising he could cure 90% ofautoimmune diseases and cancer
using massage therapy.
The board was able to take hislicense and fine him.
Will he keep saying he hasmagical curing hands?

(05:57):
Probably, but he won't say he'sa massage therapist and he'll
be a couple thousand dollarslighter.
Does he deserve jail time?
Maybe, but in Michigan that'ssomething that is decided
independently by the court and,honestly, isn't something the
massage therapy profession needsto spend its time on.
Is it good enough?
I don't know, but it's betterthan no consequences at all.

(06:18):
There are also some less thangreat results of licensing.
It creates a barrier to enterthe profession, which might
serve some people and not others.
It costs money, both for thepeople being licensed and for
the state.
It creates paperwork andadministrative burden all around
.
It can also be used tohomogenize a profession or to
make everybody practice the same, and for a profession like
massage therapy, that could be amajor issue, because the

(06:40):
uniqueness of our practices isan important part of who and
what we are.
Let's look at some history.
Medicine was homogenized around1910 when a document called the
Flexner Report was released.
Abraham Flexner had touredmedical schools in the US and

(07:02):
Canada and cataloged whatsubjects they were teaching and
what the facilities were like.
He had recommendations forimprovements.
The intent of the report was toincrease standards in medical
education.
The unintended result was thata lot of facilities that
educated women, people of colorand osteopaths were closed.
This ensured that medicineremained the domain of white
male allopathic physicians.

(07:23):
Now you could use that story asa reason for massage therapy
not to increase its standards,but I think the moral of the
story is to be aware of yourbiases and consider possible
unintended consequences whenchoosing an action.
There were many optionsavailable to keep those medical
schools open.
For example, schools could havebeen given mentors and passed
to improvement, and insteadmedicine chose to use the report

(07:46):
to consolidate power, not toimprove their profession.
Medicine has a long history oftrying to control everybody
else's profession, not justtheir own, turns out.
This is not unique to medicine.
They're just better at it thaneverybody else.
When I was researching thisepisode.
There was a lot of repeatedinformation about licensing,
lots of discussion about publicsafety on the positive side,

(08:07):
gatekeeping againstpractitioners on the negative
side, and at some point myresearch stumbled across some
different theories aboutlicensing.
Theories about professionsgetting their elbows out.
Licensing is part of gettingyour elbows out.
The theory is calledprofessional jurisdiction.
It was written about in a300-page quote essay called the

(08:31):
System of Professions, publishedin size 11 font by a professor
at Chicago University namedAndrew Abbott.
If you look it up on GoogleScholar, it has been cited
21,000 times, which is unheardof.
Jurisdiction is the idea thatprofessions are in a constant
battle over territory.
Territory includes what theprofession does as well as who

(08:51):
its clients are.
Medicine is very good atjurisdictional defense.
In 1915, a slew of legislationcalled Drugless Practitioner
Acts began being passed in theUS and Canada.
The acts identified targetprofessions as massage, swedish
movement, magnetic healing,mechanotherapy, electrotherapy,
hydrotherapy, suggestive therapy, psychotherapy, andotherapy,
hydrotherapy, suggestive therapy, psychotherapy and other

(09:13):
drugless approaches.
It required these practitionersto register their names and
addresses with local offices andprovide information about why
they were qualified to practicewhatever it was they were
practicing.
The Drugless Practitioner Actswere heavily supported by the
American Medical Association.
Yes, the AMA had already beenaround for almost 70 years at
this point, because it carvedout the practice of medicine as

(09:34):
strictly their jurisdiction.
Interestingly, otherprofessions also supported the
Drugless Practitioner Act,because they were getting
arrested for practicing medicineeven when they weren't.
Sometimes an upstart professionwins a challenge against an
established profession.
Around 1900, medicine had asuccessful challenger in

(09:54):
psychiatrists.
Psychiatry's argument was thatmedicine was only good at
treating the body, but treatingthe mind needed a different
profession.
If you've ever wondered why weconstantly pretend that mental
illness isn't physical, this iswhy, in order to justify its
existence, psychiatry carved outand took part of medicine.
It also scored the ability totake medical insurance.

(10:16):
And the division didn't stopthere.
In the 1920s, psychologiststook jurisdiction from
psychiatrists.
They argued that talk therapywas just as, if not more
effective than, medications andsuccessfully created a new
profession.
And then social workers did thesame thing.
This division of labor was notonly for areas of practice, it

(10:36):
was for clientele Upper classpeople tend to see psychiatrists
, middle class people seepsychologists and lower class
people see social workers.
Why does this matter?
Because both chiropractors andphysical therapists want a piece
of massage therapy.
Chiropractors want to be incharge of us, even though they
don't understand our discipline.
This is also a jurisdictionaltactic.

(10:57):
One profession claims anotheris subordinate.
Medicine and nursing have thisrelationship, and then physical
therapy wants to claim the termmassage for its own use.
What we do and what they do arenot the same, but proving that
is difficult and up to us.
It is not in physical therapy'sbest interest to differentiate.
This means we're going to haveto do it and we're going to need

(11:17):
a lot of massage therapistparticipation.
And here is where I'm going toplug the HealWell Communities
Writing Group.
We are teaching massagetherapists to write about things
that are already rolling aroundin their heads, because if you
don't write it down, nobody elseis going to know about it, and
it is very, very valuable.
If you can talk, you can writeand we will help you.
You have to be a member of theHealWell community to join the

(11:39):
writing group, and you can dothat using the link in the show
notes or go tocommunityhealwellorg.
And speaking of writing,healwell now has a sub stack
it's called More Than Hands andfeatures writing from Heal Well,
staff members and friends ofHeal Well on a wide variety of
topics that have to do withmassage therapy.
You can subscribe to More ThanHands at the link in the show
notes.

(12:04):
Okay, back to getting our elbowsout around the physical
therapists.
So this is where licensingcomes in.
When a license is created, itcreates certain terms for a
profession.
The terms massage therapy,massage therapist and massage
can all be protected and onlyused by practitioners with that
specific license.
This is why, when massagetherapists try to create
licensing, other groups pushback.

(12:24):
Physical therapists,chiropractors and athletic
trainers are commonly involvedin the negotiation of massage
therapy licensing in most states.
In Michigan, the Federation ofTherapeutic Massage, bodywork
and Somatic Practice wasinvolved.
They are a group which includesRelfing, traeger and
Feldenkrais.
Everyone involved is playinglet's make a deal and they are
all getting their elbows out toprotect their jurisdiction.

(12:45):
You can bet your buttons thatI'm going to come back to that
300-page essay in later episodes, but this episode is about
regulation and if I startwandering, we are all going to
get confused.
Before we dive into licensingboards, let's do a quick recap.
Good things about licensingProtection through enforceable
standards, professionallegitimacy and 16% better income

(13:06):
on average.
Power to set boundaries anddiscipline bad actors like
Charles.
Ability to protect terms likemassage therapy from other
professions come on averagepower to set boundaries and
discipline bad actors likeCharles.
Ability to protect terms likemassage therapy from other
professions.
Less good stuff about licensingCreates barriers to entering
the profession, costs money,creates paperwork for everyone,
can be used to homogenizepractice and stomp out diversity
.
Bottom line licensing isn't avillain or a hero.

(13:29):
It's simply a tool.
Now let's talk about licensingboards.
As I said earlier, a licensingboard is established by a
practice act, which is a type oflegislation, which is a law
created by Congress, and if Isay this enough, maybe you and I
will both remember it later.
Licensing boards create theregulation, also known as

(13:51):
administrative rules, that makethe practice act happen.
Where the board is situated ingovernment determines if massage
therapy is considered healthcare or service in that state.
Sometimes this is reallyobvious.
For example, in Michigan,massage therapy is considered
health care and our practice actexists in the public health
code.
Sometimes it's a little harderto tell.
Alaska is a large state with asmall population, so massage

(14:13):
therapy is under the Departmentof Commerce, community and
Economic Development, which maylead you to believe that massage
therapy is considered service,but other professions housed
there include nursing,pawnbrokers and concert
promoters.
Connecticut has no board at alland is overseen by the
Department of Public Health.
Boards can be made up of anynumber of members with any
combination of types.

(14:33):
Often, board members areappointed by the governor and or
the vice governor.
Usually, a board is between 7and 11 people.
It's always an odd number andthey're a combination of
professional members, membersthat are practicing and public
members, who are people with noinvolvement or specific
knowledge of massage therapy orthe industry.
Other specifications mightrequire a board to have the
administrator of a school or,conversely, limit the number of

(14:57):
schools or business owners thatcan sit on a board, or,
conversely, limit the number ofschools or business owners that
can sit on a board.
The mix of professional andpublic members is very important
because without the publicmembers, a board could easily
become a place where theprofession protects its own
instead of protecting the public.
Boards decide on theadministrative rules or cooking
directions, but boards can'tjust change their rules
willy-nilly.
Rules must be formally openedby a board in order to be

(15:18):
changed, and usually there's aperiod of public comment that
happens before changes are made.
When the rules open, they areall up for grabs.
So if your board opens theirrules.
That is the time to present anychanges you would like to make,
and you should find people whoagree with you to add to the
public comments.
Remember anything that is inthe Practice Act legislation
such as scope of practice,cannot be changed by the board.

(15:39):
So, while there is use tomaking a public comment about it
to bring the board's attentionto the matter, know that the
board couldn't take action evenif they agreed with you.
A state representative wouldhave to be involved, and you
have a much better chance ofgetting the attention of a state
representative if your board isinvolved.
Part of the board's job is toenforce the rules.
When a licensed professionaldisobeys the rules, the board
can decide to discipline them.

(16:00):
This usually means a finerequiring some kind of education
, or suspension or revocation oftheir license.
How does the board decide whatpunishment to apply, or if they
should even apply it?
Well, it depends.
Some boards have more supportfrom the state than others.
If a board has few resources,whether that's funding or state
employee assistance, membersmight be expected to perform the

(16:22):
entire investigation of acomplaint themselves, with or
without training, on their time,on their dime, because board
members don't get paid, althoughthey might get reimbursed.
If a board has support, theinvestigation might be done by a
state investigator and thenreported back to the board.
Remember Charles In Michigan?
The state performed theinvestigation Once the board.
Remember, charles In Michigan,the state performed the
investigation.
Once the board has theinformation, their disciplinary

(16:44):
committee meets, which isusually a subset of the larger
board.
How do they decide punishment?
Well, the Practice Act defineshow much you can punish someone.
It establishes a maximum findand also might have a minimum.
What actually happens is up tothe board and, more importantly,
an unintentional result of theboard's biases.
Look, biases happen all thetime, all the time.

(17:08):
We are humans and we are madeof biases.
Personally, I really strugglewith the curse of knowledge,
which is when I have a hard timeremembering that you don't know
the things I do because they'reso obvious to me.
Never mind that I had to learnthem at one point too.
It takes work and practice tofight your biases, and they crop
up everywhere in the law.
In boards, they appear in thedynamics between the board and

(17:31):
the defendant, but also betweenboard members.
I read about a board member whowas worried about asking for
harsh punishments because theywere afraid of being seen as an
angry Black person.
Sometimes public members have ahard time asking clarifying
questions of professionalmembers, especially if they've
asked once and didn't understandthe answer.
There's a weird gap indiscipline too.
If the board gets a complaintabout someone who doesn't have a

(17:53):
license, they can't do anything.
The board can only punishpeople who have a license.
Otherwise it's a matter for lawenforcement.
At this point you won't besurprised when I tell you that
punishment is super variable bystate.
In Oklahoma, practicing or usinga protected term like massage
therapy for advertising when youare not a licensed massage
therapist is a misdemeanor.
A misdemeanor is a lessercriminal offense like

(18:16):
trespassing or shoplifting.
A felony is a bigger criminaloffense like murder, robbery or
arson.
Punishment for a misdemeanor isless severe than for a felony.
Misdemeanors carry less, if any, jail time, and that jail time
is probably served in a local orcounty jail as opposed to a
state institution.
Misdemeanors have lower fines.
You might notice thatapplications ask about past

(18:37):
felonies but not aboutmisdemeanors.
Felonies follow you around.
Well, they follow most peoplearound.
There are notable exceptions,but I doubt they apply to
anybody listening to thispodcast.
Anyway, in the state of NewYork, practicing massage therapy
without a license is a felony.
This results in people who arecaught practicing without a
license pleading to misdemeanorssuch as sex work.

(18:59):
Did I mention?
Humans have biases?
So here we are At the end ofour brisk tour through
regulation covered a lot ofground Laws, legislation,
regulation, licensing, practice,acts, boards and even
professional elbows.
I hope you've gained anappreciation for what the
regulatory landscape looks like.

(19:19):
It is not only arbitrary rulesmade by faceless bureaucrats.
It is also a dynamic system ofclaiming territory, protecting
the public and establishingprofessional standards.
Understanding regulation helpsus make informed decisions about
our profession's future.
I hope this episode has helpedyou think about how licensing
may be more than a money grab orunnecessary red tape.
It is also about who gets todefine what massage therapy is.

(19:40):
Thank you for listening.
If you found this episodehelpful, consider donating to
HealWell at healwellorg.
Slash donate or click the linkin the show notes.
This podcast works hard tobring you underexplored issues
in the massage therapyprofession.
We're starting theconversations that matter to you
and your work and we need yourhelp to keep doing it.

(20:01):
Even small donations make a bigdifference.
Once again, thank you forlistening.

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