Presentation on Proposed Ordinance 9305 to License and Regulate Massage Therapists in Lawrence, KS
Submitted by the Lawrence Massage and Bodywork Alliance, Steering Committee
We represent the Lawrence Massage and Bodywork Alliance, a coalition of professional manual therapists. We have been active in providing City staff with detailed feedback about the proposed ordinance since its first draft was released, and we’ve also provided information about our profession and its systems of education, insurance coverage, professional ethics and conduct, and standards for regulation.
While we appreciate that City staff received input from many in our community and made some important changes in their second draft, there are many important suggestions we made that were not integrated, leaving us with a proposed ordinance that’s still unacceptable to our professional community. We appreciate being able to present to you our concerns and our solutions for regulating our industry appropriately. My experience with the City of Lawrence’s government is that you listen to the community’s concerns and craft legislation that can be embraced by the community.
We have three overarching concerns about the ordinance, and many detailed ones. Our big concerns are that:
1. The proposed ordinance is written with the intent of addressing the illegal acts of human trafficking and selling of sex services, not to ethically and professionally regulate the health care industry of massage therapy.
2. Massage therapy regulations should be based upon industry standards. As massage therapy is regulated at the state level in 47 states, the policies of local Kansas cities are legal anomalies that should not be used as the basis for Lawrence’s regulations.
3. The proposed ordinance includes invasive regulations for which there is little legal precedence in City Code or in industry-standard massage therapy regulations.
1. Regulating Massage Therapists with the Intent of Policing Illegal Sex Work
The proposed ordinance presupposes that massage therapists may be sex workers and, therefore, the City should have the liberty to regulate us in ways they do sexually-oriented businesses or in ways to prove we are not sexually-oriented businesses. Some of the proposed regulations are duplications of policies from the City Code that are otherwise only required for Sexually-Oriented Businesses, therefore lumping our professional, ethical practice of massage therapy in with Sexually-Oriented Businesses, not with other health care professions. Other regulations, such as the right of entry and employee and client registers, are clear attempts to monitor and police our practices to guarantee that we are not providing sex services.
Massage therapy should not be governed as Sexually-Oriented Businesses are, and many of us have been deeply offended and demeaned, personally and professionally, by this proposal. In policing massage therapists in order to identify human traffickers and the sale of sex services, massage therapists are unfairly targeted with non-professional and legally-questionable regulations that do not serve us or our clients.
We recognize that human trafficking is a deeply concerning issue throughout the world, and we appreciate Lawrence law enforcement looking for ways to combat it.
We also recognize that massage therapy regulations in the 47 states who regulate massage therapy do not normally include the tactics we are objecting to, so, nationwide, law enforcement must be using different tools than the ones proposed in this ordinance.
Licensing massage therapists based on the requirements of education, passage of a national exam, and insurance coverage should eliminate the ability to fraudulently obtain a massage therapy license, and, therefore, eliminate the ability to sell sex services under the guise of massage therapy. This means that the policing measures of this ordinance should be unnecessary. Relatedly, human trafficking and the selling of sex services are illegal in their own right, and the City should be able to use existing law to investigate and prosecute those who do so.
Rather than targeting massage therapists, we ask that the City of Lawrence and our Police Department find other, valid methods for addressing the inhumane and cruel act of human trafficking.
2. Industry-Standard Regulations
Massage therapy is a healing profession within the medical arts, and massage therapists are professional health care providers. We should be regulated using industry-standard regulations that govern our professional, safe, and ethical actions, and protect the health and safety of the public, rather than regulations aiming to police illegal sex work. To regulate an entire industry, this policy should be based upon knowledge from the massage therapy regulatory community, and its requirements should be more reflective of regulations for any other health care providers, such as chiropractors, physical therapists, nurses, doctors, acupuncturists, and others, than regulations for Sexually-Oriented Businesses.
Massage therapy is regulated at a state level in 47 states, so the City staff should use the regulatory knowledge reflected in state regulations or state-based models to craft Lawrence’s City ordinance, rather than using regional cities’ policies as a model. Our professional Codes of Ethics, Standards of Practice, and national licensing exam requirements should also inform this policy.
The Federation of State Massage Therapy Board’s (FSMTB) Model Massage Therapy Act is an excellent basis for regulation as it is provided to “assist regulators with statutory language based upon the collective wisdom of the Massage Therapy regulatory community.” Several members of our community have recommended this repeatedly since the first draft was released, and I wrote and presented to the Assistant City Attorney and City Clerk a proposed policy blending this model policy with elements of the City’s original proposal to accommodate City, rather than State, implementation.
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3. Lack of Legal Precedence in City Code and Invasive Elements of Ordinance
As mentioned before, there are elements of the proposed ordinance that are only otherwise used for Sexually-Oriented Businesses, but are not used for any of the other professionals and businesses licensed in Article V and VI of the City Code. These elements are also not found in industry-standard massage therapy regulations. These include some requirements in the business and therapist applications, hours of operation, right of entry, operations, and employee and client registers sections of the ordinance, and we have included a detailed enumeration of these in our suggested Amendments to Ordinance 9305. We ask to be regulated with an ordinance that is legally consistent with the City’s regulations for other professionals and businesses.
The Inspections, Right of Entry, and Employee and Client Register requirements are especially concerning as they are overly-invasive policies. We believe that the Inspections and Right of Entry section gives the City undue freedom to investigate our practices without reason. The requirement to keep a daily register of our clients, their addresses, and details about their session is a level of privacy invasion that is not seen anywhere else in the City Code and would cause us to violate HIPPA, our insurance policies, codes of ethics, and standards of conduct.
4. Other Concerns
Registry
The ordinance requires that therapists keep a detailed, hand-written, daily register of all “client’s name and address, the service requested and service provided, the room in which service was provided, the name of the employee providing such service, and the time and date of service.” This requirement violates HIPPA compliance for therapists working in medical offices, and it violates our professional confidentiality and privacy requirements established by our insurance policies and our professional codes of ethics and standards of practice. For our clients, it means that they are recorded as assumed potential receivers of sex services. No other individual licensed by the City is required to keep a daily log of their clients, and it’s an extremely onerous requirement to place upon practitioners.
Operations
The Operations requirements are not required for other businesses in Chapter VI of the Code, except some for Sexually-Oriented Businesses, and they are rarely included in state regulations. Some of them, such as hours of operations, are only otherwise required for Sexually-Oriented Businesses and are a clear effort to restrict the potential sale of sex services. But there are legitimate and ethical practitioners who treat night-shift workers, such as firefighters and performers, during these hours. The stipulation that a practitioner not expose their genitalia is redundant as that is illegal in any context, yet including it here clearly implies that law enforcement expects massage therapists might do this, an offensive implication for ethical practitioners. Some of the operational requirements, such as the cleanliness requirements, are subjective standards that give law enforcement “back doors” to investigate people without honoring constitutional protections against search and seizure. Massage therapists could easily be at the mercy of overzealous enforcement officials, especially if we are without an adequate appeals process.
Appeals
The Appeals process in the City’s proposal requires an applicant to take their appeal to the City Manager, and if they are dissatisfied with his or her decision, they must take it to District Court. No appeals process should be overseen by a single person, and requiring secondary appeals to go to District Court is extremely burdensome to applicants and completely inconsistent with City Code. All professions regulated by the City, such as plumbers and electricians, have their own Appeals Board composed primarily of professionals from their industry, and this is a standard piece of professional regulation. In my proposed policy, Section 6-2012 establishes an appeals process and a Massage Therapy Appeals Board.
Right of Entry
The Inspections and Right of Entry privileges granted to City enforcement officers in this ordinance are overly broad, invasive, and disruptive for our profession. In City Code governing building construction and rental properties, these enforcement instruments are granted for inspecting the safety of structures, but in this ordinance they are granted, “for the purposes of determining that the Massage Therapy Business is in compliance with this Article.” This latitude is only otherwise given in the City Code for inspecting Sexually-Oriented businesses. Relatedly, there are no overt protections for the nature and timing of inspections as there are for building construction and rental properties.
Omissions and Errors
There are oversights and errors still within the second draft of the regulations. The City’s proposal is missing key, standard pieces of regulations. This includes:
1. identifying professional standards of conduct that outline unprofessional, unsafe, and unethical practices in the field of massage therapy, which, we believe, is one of the primary purposes of professional regulation,
2. identifying circumstances in which a Massage Therapy License is not required, such as educational settings, emergency, and working on family members, and
3. identifying manual therapists who are not massage therapists and therefore would not be subject to this Article.
The proposed ordinance also erroneously requires businesses to carry professional massage therapy liability insurance when those policies are carried by individual practitioners and cannot be purchased by businesses.
Solutions
I ask the City Commission to reject Ordinance 9305 and to direct City staff to craft a different ordinance modeled on industry-standard regulations for massage therapy. We see two potential solutions before us:
1. Use the Federation of State Massage Therapy Board’s (FSMTB) Model Massage Therapy Act that was mentioned earlier as a model for crafting an ordinance to locally regulate our entire industry. Also use our Standards of Practice, Codes of Ethics, insurance policies, and national licensing exam to inform the ordinance.
I crafted just such an ordinance by modifying the FSMTB model to fit into the City of Lawrence’s Code and to integrate components from the proposed City’s massage therapy regulations. After receiving feedback from this Steering Committee, I and several members of our group presented this draft to the Assistant City Attorney and City Clerk in January. A few of our suggestions were integrated into the City’s second draft, but many more were not.
Differences between this proposal and the City's draft ordinance are that this policy:
· includes more stringent licensing requirements, which effectively limits someone's ability to fraudulently get a license (6-2003 - 6-2005),
· doesn't include the invasive and controlling "policing" policies from the City's draft sections 6-2017 through 6-2021, because the licensing requirements are much stronger,
· clarifies people and situations that are exempted from this policy (6-2003 C.),
· includes unprofessional, unsafe, and unethical practices in the field of massage therapy (6-2011). This helps make this a professional licensing program rather than a policing policy for sex trafficking,
· integrates some of the proposed City ordinance that was specific to local procedures, such as giving licensing power to the City Clerk (6-2008-2011), and
· creates a Massage Therapy Licensing Appeals board to hear appeals for complaints Applicants or Licensees may have, which the City draft had assigned to the City Manager and would usually be served by a State Massage Board (6-2012),
2. Make the detailed changes to the proposed Ordinance 9305 in our Recommended Amendments to Ordinance 9305 document, which would use much of the current language but would change all of the objectionable parts that we’ve enumerated in this presentation. This would create a policy to regulate our profession that our community could embrace, rather than fight.
Resources:
FSMTB’s Model for Massage Licensing Policy - The model I modified to meet our needs. https://www.fsmtb.org/media/1126/model_massage_therapy_practice_act.pdf
Standards of Practice and Code of Ethics - These industry standards provide detailed information about expectations for therapists' conduct, and they are referenced in our Section 6-2011, Massage Therapy License Discipline.
http://www.ncbtmb.org/standards-practice
https://www.amtamassage.org/About-AMTA/standards.html
http://www.ncbtmb.org/code-ethics
https://www.amtamassage.org/About-AMTA/Core-Documents/Code-of-Ethics.html
List of Massage Therapy Associations and Related Organizations - This invaluable compilation of massage and bodywork associations throughout the nation includes a list of non-massage bodywork institutes (Bodywork and Specific Modalities section) that will be useful in determining if other manual-therapy practices could be exempted from the policy. https://www.massage-exam.com/massage-associations.php
Handbook for MBLex Exam - This handbook provides detailed information about the national Massage & Bodywork Licensing Exam (MBLex), its content, and its administration. https://www.fsmtb.org/media/1105/candidate-handbook.pdf