Legal Duties and Responsibilities of Massage Therapists

as Allied Health Care Professionals under State Regulatory Control

Ignorance of the law excuses no man: Not that all men know the law,

but because it’s an excuse every man will plead, and no man can tell how to refute him.

John Selden

English antiquarian & jurist (1584 - 1654)

Currently 43 states and the District of Columbia regulate massage therapy.  In almost all of these states massage regulation falls under the laws associated with the state’s public health code.  This is also true in the State of Michigan.  When a massage therapist is attempting to understand the laws and regulations that they are required to conform to they must educate themselves about and comply with the following:

1.         The state’s public health code.

2.         The state’s adopted massage law.

3.         The state’s adopted massage board  

             administrative rules.

4.         Additional laws pertaining to health

             care, commercial consumer protection and fraud.

The purpose of massage regulation by a state is to assure the safety and protection of the public and to protect the public from harm committed by a massage therapist.  This is true not only for massage therapists, but for all regulated physicians and allied health care professionals.  In a number of cases states have extended their legal control and authority to include non-regulated health care workers, including those that practice holistic, alternative and complementary health care.

Since health care worker regulation is primarily established to safeguard the public laws and rules also cover issues related to commercial consumer protection and health care fraud.  It is often an unpleasant surprise to certain newly regulated health professionals, or non-regulated health workers, that they cannot simply provide any services or goods to the public that they chose regardless of efficacy, value, or safety.

Recognized medical professions that have a long history of state regulation have well defined standards of practice, a scope of practice, and education and training criteria, as well as, falling under a distinct management and supervisory hierarchy. 

In the case of Michigan massage therapy regulation massage therapists fall under the broad regulation of the Michigan Public Health Code, under the massage law and under the specific rules of the Michigan Massage Board, and as previously stated various commercial consumer protection laws and laws pertaining to financial and health care fraud.   Massage therapists that violate the Michigan Public Health Code, the Massage Law and/or the administrative rules are subject to varying levels of sanction, fines and/or criminal charges.

The Michigan massage law defines the use of protected terms and titles such as the titles pertaining to massage therapy and massage therapists.  The law defines who may call themselves a massage therapist (or similar titles) and what moral, training and educational criteria they must have met in order to qualify for a massage license. The massage law also specifically instructs that a massage therapist may not diagnose disease.  Additionally, the law defines what massage therapy is and what associated terms mean.  The Massage Board promulgated rules further define educational and testing requirements, a scope of practice and approved activities and many other details that explain what a Michigan massage therapist may or may not do within the parameters of a Michigan license to practice massage in Michigan. 

The broader legal umbrella provided by the Michigan Public Health Code restricts the application of invasive medical techniques and the performance of diagnosis of human disease to licensed medical and osteopathic physicians.   Chiropractors may not perform invasive medical procedures and may not diagnose human disease outside of the parameters of musculo-skeletal or spinal disorders. 

If a licensed health care professional violates the public health code, the law regulating their profession and/or the administrative rules they may be subjected to sanctions, fines, suspension/revocation of their license (temporary or permanent), and possibly criminal penalties. 

Non-regulated health care workers including naturopaths, homeopaths, reflexologists, and iridologists (even though not regulated via a professional practice act) still fall under the Michigan Public Health Code and consumer protection laws and regulations.  For example, the Michigan Attorney General has issued a decision that the performance of diagnosis including alternative, energy or eastern is the practice of medicine.   Only licensed medical, osteopathic, or chiropractic physicians may diagnose in the state of Michigan.  To clarify this statement there is no form of alternative, energy or eastern diagnosis, assessment or evaluation that is legal in the state of Michigan, unless performed by a licensed physician.  Additionally, acupuncturists (whether registered or non-registered in Michigan) many not diagnose energy meridians, yin and yang, five element patterns, or through the use of tongue or pulse diagnosis. 

Attempts by various alternative, holistic, or complementary practitioners to weasel around, rationalize, or to circumvent the public health code and related laws by claiming that energy, psychic, metaphysical, occult practices, or pseudoscientific devices or instrumentation, are not diagnosis have been rejected by attorney general decisions in many states, including Michigan, and are simply baseless arguments. 

Any non-licensed health care worker that provides any form of diagnosis (including “non-medical” assessment or evaluation) is violating the Michigan Public Health Code and is committing the felony practice of medicine without a license and is risking severe penalties.  However, the State of Michigan doesn’t actively search for such violations unless a formal complaint is filed with the attorney general’s office.  Michigan law requires the investigation of any complaint that is filed.  If the actions of a health care worker (regulated or non-regulated) result in harm, maiming or death to a person local prosecutors and the Michigan Office of the Attorney General investigate and prosecute the defendant. 

“An individual who practices or holds himself out as practicing a health profession subject to regulation without a license or registration or under a suspended, revoked, lapsed, void, or fraudulently obtained license or registration, or outside the provisions of a limited license or registration, or who uses as his own the license or registration of another person, is guilty of a felony. For the purpose of the offense of practicing medicine without a license, the "practice of medicine" means the diagnosis, treatment, prevention, cure, or relieving of a human disease, ailment, defect, complaint, or other physical or mental condition, by attendance, advice, device, diagnostic test, or other means, or offering, undertaking, attempting to do, or holding oneself out as able to do, any of these acts.”  Michigan Public Health Code

The State of Michigan has had a history of prosecuting naturopaths for practicing medicine without a license and one such case was, “People v. Rebecca Rogers”  In another instance a Michigan reiki practitioner was found guilty of second degree criminal sexual misconduct when he sexually molested an underage male though instruction in sexual (tantric) energy instruction involving nudity and masturbation, “People versus Jeffery L. Knapp” and he was sentenced to over 22 years in prison.

While regulated physicians and allied health care professionals enjoy certain protections under state law and will be covered by professional malpractice insurance, non-regulated health care workers have no such protection.  Where a regulated professional may have harmed a patient, unless they have seriously strayed from the law and common sense, they will most likely avoid criminal charges and their malpractice policy will handle their legal defense and any potential financial settlement.  Non-regulated health workers will have no such protection from criminal charges that may include various levels of sexual misconduct, assault and battery, manslaughter, or murder.   If a non-regulated health worker has a malpractice policy the policy will most likely be found invalid by the insurance underwriter if it has been determined that any laws have been violated by the health care worker.  All malpractice insurance policies contain language rendering them invalid if the holder of the policy is practicing in violation of the law.  For example, if an alternative health practitioner has a malpractice insurance policy that covers procedures that they perform within their practice of health care and is found by a court to have performed diagnosis or the practice of medicine without a license their malpractice policy will the null and void.

If a massage therapist adds various health care practices to their massage practice that fall outside of the legally defined scope of practice of their professional regulation and licensure they may face sanctions, fines, penalties, and/or revocation/suspension (temporary or permanent) of their license.   For example, a massage therapist that also practices various alternative, holistic, or complementary forms of diagnosis, whether from traditional Asian or Indian medicine, will be in direct violation of their regulatory law and its associated administrative rules.  The Michigan massage law says, “Practice of massage therapy does not include medical diagnosis…”

Over the last 2 decades American Health Source and its consortium affiliates including the American Medical Massage Association and National Governing Council Health and Education Partnership, as well as, through its association with the National Working Group on Evidence Based Health Care have determined that the American public deserves to be provided with ethical, efficacious, evidence based health care.  Whether a patient is receiving conventional medical care or alternative, holistic, or complementary health care, any health care that is provided must meet acceptable scientific standards.  The act of providing medical or health care services to a patient for which there is no valid medical or scientific evidence, or for which the research has disproved the methodology of care, is a violation of professional ethics and the law, and may constitute the act of health care fraud.

The core principles of evidence based health care include:

1.         Evidence-based healthcare should support individualized care and allow for diversity of choice and utilization.

2.         Each patient should be treated individually based on needs, health status, history and other individual factors.

3.         Patients must be fully informed and educated regarding any form of health care that they chose to use including the  

            research pro’s and con’s.

4.         Acceptable research evidence should not be limited to randomized clinical studies. All types of research should be

            incorporated to ensure all racial/ethnic groups are fairly included.

5.         Safety and finding the right treatment for the patient should be a top goal of evidence-based healthcare.

6.         Evidence should support doctor and consumer decision-making rather than dictate treatment.

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The information provided in this article should not be construed as legal advice and it is recommended that therapists consult with their practice attorney.  The information in this article was compiled by American Health Source and the American Medical Massage Association in consultation with Michigan state legislators, the Michigan Office of the Attorney General, the lobbying firm of Scofes and Associates, and the legal firm of Butzel Long.