Getting Your Elbows Out: Why Licensing Matters to Massage Therapy

Regulation might sound like the least exciting topic in massage therapy, but it's actually the battleground where our professional identity and future are being decided.

Massage therapy regulation is far more than bureaucratic red tape; it's a dynamic system that establishes professional standards, protects the public, and helps define who controls the massage profession's territory. We break down the complex regulatory landscape, explaining how licensing affects practice rights and why it matters to every therapist.

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Chapters

• 1:17 Introduction to massage therapy regulation
• 2:10 Understanding regulation, laws, and licensing
• 3:54 Practice acts and administrative rules
• 6:03 Pros and cons of licensing
• 7:40 Professional jurisdiction theory
• 11:40 Licensing boards and enforcement
• 19:22 Disciplinary action and biases
• 21:07 Conclusion and call to action

Transcript

Corey Rivera: 0:42

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 about massage therapy regulation. I promise we're going to try and make it more interesting than you'd think. Well, I've looked at a couple of dozen state massage laws. I am most familiar with Michigan's because I've always practiced here, so you're going to get a lot of Michigan massage stuff in this episode.

Corey Rivera: 1:15

What exactly is regulation? The current political landscape has made it clear that none of us are taught about government or civics anymore. Civics, by the way, is the study of the civil rights and obligations of citizens a definition I didn't know until I looked it up. So it's perfectly understandable if your idea of regulation is fuzzy and along the lines of the government makes decisions about things and then makes rules in a mysterious process involving backroom deals and sausage processing. Regulation, it turns out, is part of legislation, which is part of the law. Confused already, cheers. Let's start from the other direction.

Corey Rivera: 1:50

Laws are the big bucket in the situation. Laws are all the rules that can be enforced in a location. There are three types of laws Constitutional, which are the foundation a government sits on. Common law, which is when judges make a decision that is later referenced in court proceedings, and legislation, which are laws that are made by a body like Congress or Parliament. So laws are enforceable. Rules and legislation is one type of law. Legislation creates authority for regulations, which means regulations are a part of legislation, which is a part of the law. Legislation creates authority for regulations, which means regulations are a part of legislation, which is a part of the law. Regulations provide specific rules for how legislation is implemented. So if we were talking about food, which we can all agree is more interesting, legislation would be the type of dish and the raw ingredients, and regulation would be directions for cooking. Licensing is part of the cooking directions of regulation. Licensing is one way that regulations accomplish the goal. Legislation designed. So laws are enforceable. Rules and legislation is a type of law made by Congress. Regulation is the details of how legislation is enacted and can be enforced. Licensing is one of the methods regulation uses to fulfill the goals set out in legislation.

Corey Rivera: 3:03

Phew, let's take a break. Okay, one type of legislation is called an act For massage therapy. It is called a practice act. A practice act outlines the general framework, recipe and ingredients for the profession. These ingredients include scope of practice, licensing requirements and disciplinary processes. Most practice acts, but not all. Welcome to having 50 states and multiple territories.

Corey Rivera: 3:37

Most practice acts create a board of massage therapy. The board decides the regulation for the practice act. This regulation is called the administrative rules and they are the directions for making the practice act recipe. Everything I say from here on about boards is subject to change depending on the state or territory. An example of an administrative rule is how many hours of education are required to get a license. It is much easier to change administrative rules than it is to change a practice act. After all, when you're cooking, grating versus slicing the cheese will still get you a grilled cheese sandwich, but deciding you're making cheesecake instead of grilled cheese changes everything. Administrative rules are decided by the board and they can be open for changes when the board decides. Changing a practice act requires agreement of the state's Congress, because a practice act is legislation made by Congress and only Congress can change it.

Corey Rivera: 4:28

In addition to licensing, regulation can include things like safety standards and it can make rules for how a profession practices. Quick note regulation is not a guideline, a best practice or a voluntary standard. Regulation is not optional. It is a requirement that has to be followed. It also isn't necessarily the best version of anything. It's simply what was decided For massage therapy.

Corey Rivera: 4:51

This means that the rules of licensing aren't always great. They might not protect the public, they might restrict or burden massage therapists unnecessarily, or they might read like the person who wrote them lives in Victorian England and has never had a massage or met a massage therapist. And with that you might be wondering why the heck we as a profession would agree to licensing. You might further wonder why HealWell supports licensing in all states and territories. If you want the too-long-didn't-read version, it's because it advances the profession. And if that answer is unsatisfying and maybe vaguely annoying, strap in. There are some very simple reasons to support licensing. Licensing increases the income of a profession by 16% on average. Licensing adds legitimacy to a profession. Licensing gives the profession a way to establish standards and ensure that professionals are practicing safely by creating discipline and enforcement guidelines.

Corey Rivera: 5:50

Public safety is the number one reason licensing gets passed and it is by far the loudest argument a profession makes. With no way to control who and how people practice, there is endless room for harmful actions and no consequences. There's also the question of who enforces the rules if there is no regulation, because that means following the rules is optional. The default answer is the police, but it isn't a good idea for the police to be enforcement for something like false advertising or unhygienic procedures. I recently sat in a Michigan board meeting where they discussed the case of a man named Charles who was advertising he could cure 90% of autoimmune diseases and cancer using massage therapy. The board was able to take his license and fine him. Will he keep saying he has magical curing hands? Probably, but he won't say he's a massage therapist and he'll be a couple thousand dollars lighter. Does he deserve jail time? Maybe, but in Michigan that's something that is decided independently by the court and, honestly, isn't something the massage therapy profession needs to spend its time on. Is it good enough? I don't know, but it's better than no consequences at all.

Corey Rivera: 6:53

There are also some less than great results of licensing. It creates a barrier to enter the profession, which might serve some people and not others. It costs money, both for the people being licensed and for the state. It creates paperwork and administrative burden all around. It can also be used to homogenize a profession or to make everybody practice the same, and for a profession like massage therapy, that could be a major issue, because the uniqueness of our practices is an important part of who and what we are.

Corey Rivera: 7:19

Let's look at some history. Medicine was homogenized around 1910 when a document called the Flexner Report was released. Abraham Flexner had toured medical schools in the US and Canada and cataloged what subjects they were teaching and what the facilities were like. He had recommendations for improvements. The intent of the report was to increase standards in medical education. The unintended result was that a lot of facilities that educated women, people of color and osteopaths were closed. This ensured that medicine remained the domain of white male allopathic physicians. Now you could use that story as a reason for massage therapy not to increase its standards, but I think the moral of the story is to be aware of your biases and consider possible unintended consequences when choosing an action. There were many options available to keep those medical schools open. For example, schools could have been given mentors and passed to improvement, and instead medicine chose to use the report to consolidate power, not to improve their profession.

Corey Rivera: 8:25

Medicine has a long history of trying to control everybody else's profession, not just their own, turns out. This is not unique to medicine. They're just better at it than everybody else. When I was researching this episode. There was a lot of repeated information about licensing, lots of discussion about public safety on the positive side, gatekeeping against practitioners on the negative side, and at some point my research stumbled across some different theories about licensing. Theories about professions getting their elbows out. Licensing is part of getting your elbows out. The theory is called professional jurisdiction. It was written about in a 300-page quote essay called the System of Professions, published in size 11 font by a professor at Chicago University named Andrew Abbott. If you look it up on Google Scholar, it has been cited 21,000 times, which is unheard of.

Corey Rivera: 9:19

Jurisdiction is the idea that professions are in a constant battle over territory. Territory includes what the profession does as well as who its clients are. Medicine is very good at jurisdictional defense. In 1915, a slew of legislation called Drugless Practitioner Acts began being passed in the US and Canada. The acts identified target professions as massage, swedish movement, magnetic healing, mechanotherapy, electrotherapy, hydrotherapy, suggestive therapy, psychotherapy, andotherapy, hydrotherapy, suggestive therapy, psychotherapy and other drugless approaches. It required these practitioners to register their names and addresses with local offices and provide information about why they were qualified to practice whatever it was they were practicing. The Drugless Practitioner Acts were heavily supported by the American Medical Association. Yes, the AMA had already been around for almost 70 years at this point, because it carved out the practice of medicine as strictly their jurisdiction. Interestingly, other professions also supported the Drugless Practitioner Act, because they were getting arrested for practicing medicine even when they weren't.

Corey Rivera: 10:22

Sometimes an upstart profession wins a challenge against an established profession. Around 1900, medicine had a successful challenger in psychiatrists. Psychiatry's argument was that medicine was only good at treating the body, but treating the mind needed a different profession. If you've ever wondered why we constantly pretend that mental illness isn't physical, this is why, in order to justify its existence, psychiatry carved out and took part of medicine. It also scored the ability to take medical insurance.

Corey Rivera: 10:51

And the division didn't stop there. In the 1920s, psychologists took jurisdiction from psychiatrists. They argued that talk therapy was just as, if not more effective than, medications and successfully created a new profession. And then social workers did the same thing. This division of labor was not only for areas of practice, it was for clientele Upper class people tend to see psychiatrists, middle class people see psychologists and lower class people see social workers.

Corey Rivera: 11:20

Why does this matter? Because both chiropractors and physical therapists want a piece of massage therapy. Chiropractors want to be in charge of us, even though they don't understand our discipline. This is also a jurisdictional tactic. One profession claims another is subordinate. Medicine and nursing have this relationship, and then physical therapy wants to claim the term massage for its own use. What we do and what they do are not the same, but proving that is difficult and up to us. It is not in physical therapy's best interest to differentiate. This means we're going to have to do it and we're going to need a lot of massage therapist participation.

Corey Rivera: 11:56

And here is where I'm going to plug the HealWell Communities Writing Group. We are teaching massage therapists to write about things that are already rolling around in their heads, because if you don't write it down, nobody else is going to know about it, and it is very, very valuable. If you can talk, you can write and we will help you. You have to be a member of the HealWell community to join the writing group, and you can do that using the link in the show notes or go to communityhealwellorg. And speaking of writing, healwell now has a sub stack it's called More Than Hands and features writing from Heal Well, staff members and friends of Heal Well on a wide variety of topics that have to do with massage therapy. You can subscribe to More Than Hands at the link in the show notes.

Corey Rivera: 12:39

Okay, back to getting our elbows out around the physical therapists. So this is where licensing comes in. When a license is created, it creates certain terms for a profession. The terms massage therapy, massage therapist and massage can all be protected and only used by practitioners with that specific license. This is why, when massage therapists try to create licensing, other groups push back. Physical therapists, chiropractors and athletic trainers are commonly involved in the negotiation of massage therapy licensing in most states. In Michigan, the Federation of Therapeutic Massage, bodywork and Somatic Practice was involved. They are a group which includes Relfing, traeger and Feldenkrais. Everyone involved is playing let's make a deal and they are all getting their elbows out to protect their jurisdiction. You can bet your buttons that I'm going to come back to that 300-page essay in later episodes, but this episode is about regulation and if I start wandering, we are all going to get confused.

Corey Rivera: 13:31

Before we dive into licensing boards, let's do a quick recap. Good things about licensing Protection through enforceable standards, professional legitimacy and 16% better income on average. Power to set boundaries and discipline bad actors like Charles. Ability to protect terms like massage therapy from other professions come on average power to set boundaries and discipline bad actors like Charles. Ability to protect terms like massage therapy from other professions. Less good stuff about licensing Creates barriers to entering the profession, costs money, creates paperwork for everyone, can be used to homogenize practice and stomp out diversity. Bottom line licensing isn't a villain or a hero. It's simply a tool.

Corey Rivera: 14:07

Now let's talk about licensing boards. As I said earlier, a licensing board is established by a practice act, which is a type of legislation, which is a law created by Congress, and if I say this enough, maybe you and I will both remember it later. Licensing boards create the regulation, also known as administrative rules, that make the practice act happen. Where the board is situated in government determines if massage therapy is considered health care or service in that state. Sometimes this is really obvious. For example, in Michigan, massage therapy is considered health care and our practice act exists in the public health code. Sometimes it's a little harder to tell. Alaska is a large state with a small population, so massage therapy is under the Department of Commerce, community and Economic Development, which may lead 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 all and is overseen by the Department of Public Health.

Corey Rivera: 15:05

Boards can be made up of any number of members with any combination of types. Often, board members are appointed by the governor and or the vice governor. Usually, a board is between 7 and 11 people. It's always an odd number and they're a combination of professional members, members that are practicing and public members, who are people with no involvement or specific knowledge of massage therapy or the industry. Other specifications might require a board to have the administrator of a school or, conversely, limit the number of schools or business owners that can sit on a board, or, conversely, limit the number of schools or business owners that can sit on a board. The mix of professional and public members is very important because without the public members, a board could easily become a place where the profession protects its own instead of protecting the public.

Corey Rivera: 15:45

Boards decide on the administrative rules or cooking directions, but boards can't just change their rules willy-nilly. Rules must be formally opened by a board in order to be changed, and usually there's a period of public comment that happens before changes are made. When the rules open, they are all up for grabs. So if your board opens their rules. That is the time to present any changes you would like to make, and you should find people who agree with you to add to the public comments. Remember anything that is in the Practice Act legislation such as scope of practice, cannot be changed by the board. So, while there is use to making a public comment about it to bring the board's attention to the matter, know that the board couldn't take action even if they agreed with you. A state representative would have to be involved, and you have a much better chance of getting the attention of a state representative if your board is involved.

Corey Rivera: 16:31

Part of the board's job is to enforce the rules. When a licensed professional disobeys the rules, the board can decide to discipline them. This usually means a fine requiring some kind of education, or suspension or revocation of their license. How does the board decide what punishment to apply, or if they should even apply it? Well, it depends. Some boards have more support from the state than others. If a board has few resources, whether that's funding or state employee assistance, members might be expected to perform the entire investigation of a complaint themselves, with or without training, on their time, on their dime, because board members don't get paid, although they might get reimbursed. If a board has support, the investigation might be done by a state investigator and then reported back to the board.

Corey Rivera: 17:11

Remember Charles In Michigan? The state performed the investigation Once the board. Remember, charles In Michigan, the state performed the investigation. Once the board has the information, their disciplinary committee meets, which is usually a subset of the larger board. How do they decide punishment?

Corey Rivera: 17:25

Well, the Practice Act defines how much you can punish someone. It establishes a maximum find and also might have a minimum. What actually happens is up to the board and, more importantly, an unintentional result of the board's biases. Look, biases happen all the time, all the time. We are humans and we are made of biases. Personally, I really struggle with the curse of knowledge, which is when I have a hard time remembering that you don't know the things I do because they're so obvious to me. Never mind that I had to learn them at one point too. It takes work and practice to fight your biases, and they crop up everywhere in the law. In boards, they appear in the dynamics between the board and the defendant, but also between board members. I read about a board member who was worried about asking for harsh punishments because they were afraid of being seen as an angry Black person. Sometimes public members have a hard time asking clarifying questions of professional members, especially if they've asked once and didn't understand the answer. There's a weird gap in discipline too. If the board gets a complaint about someone who doesn't have a license, they can't do anything. The board can only punish people who have a license. Otherwise it's a matter for law enforcement. At this point you won't be surprised when I tell you that punishment is super variable by state.

Corey Rivera: 18:40

In Oklahoma, practicing or using a protected term like massage therapy for advertising when you are not a licensed massage therapist is a misdemeanor. A misdemeanor is a lesser criminal offense like trespassing or shoplifting. A felony is a bigger criminal offense like murder, robbery or arson. Punishment for a misdemeanor is less severe than for a felony. Misdemeanors carry less, if any, jail time, and that jail time is probably served in a local or county jail as opposed to a state institution. Misdemeanors have lower fines.

Corey Rivera: 19:11

You might notice that applications ask about past felonies but not about misdemeanors. Felonies follow you around. Well, they follow most people around. There are notable exceptions, but I doubt they apply to anybody listening to this podcast. Anyway, in the state of New York, practicing massage therapy without a license is a felony. This results in people who are caught practicing without a license pleading to misdemeanors such as sex work. Did I mention? Humans have biases? So here we are At the end of our brisk tour through regulation covered a lot of ground Laws, legislation, regulation, licensing, practice, acts, boards and even professional elbows.

Corey Rivera: 19:53

I hope you've gained an appreciation for what the regulatory landscape looks like. It is not only arbitrary rules made by faceless bureaucrats. It is also a dynamic system of claiming territory, protecting the public and establishing professional standards. Understanding regulation helps us make informed decisions about our profession's future. I hope this episode has helped you think about how licensing may be more than a money grab or unnecessary red tape. It is also about who gets to define what massage therapy is. Thank you for listening. If you found this episode helpful, consider donating to HealWell at healwellorg. Slash donate or click the link in the show notes. This podcast works hard to bring you underexplored issues in the massage therapy profession. We're starting the conversations that matter to you and your work and we need your help to keep doing it. Even small donations make a big difference. Once again, thank you for listening.