The BLMTB Board of Directors is still concerned about removing the statute that designates massage therapy as health care. And our outside experts agree.

What follows is a recap  of the situation and next steps we’re asking you to take, along with talking points to discuss with legislators.

Recap

The Governor has initiated the Red Tape Initiative, which is supposed to make it easier to do business in Montana. The Department of Labor & Industry (DLI) is remaking the licensing codes by slashing and reorganizing the statutes. One bill, Title-37 Reform, eliminates the purpose statement from professions that have one (like massage therapy) and creates one general purpose statement applicable to all professions.

The problem is, massage therapy’s purpose statement also designates us as health care. The remainder of our statutes do not. So instead of making it easier to do business, this particular change will make it harder to do business. Insurance reimbursement, workplace settings, and more may be affected by the change.

DLI held a zoom meeting on November 17 to discuss how all of the statutory changes impact professions. During the question and answer period, the moderator, Dave Cook from DLI, said that massage therapy is health care and will remain health care despite the change. Again, our outside experts disagree, so it still remains an issue.

The BLMTB Board has decided that this issue is so important that we are foregoing action on our other issues with the statutory reorganization: Continuing education requirements and who can be on the board. These are also important issues, but the health care designation is absolutely vital to our profession.

We believe that we have come up with a solution that makes all of us happy: Retitle the purpose statement and strike everything from it except for the language on health care. That solution is in our talking points below (see #6).

Next Steps

1. The DLI is not listening, so it is time to approach legislators.
   • If you know a legislator personally, talk to them.
   • Once committee assignments are released we’ll ask you to target those members
   • Find your legislator.
2. It’s important to use the talking points below, because the DLI’s Mr. Cook implies that we don’t know what we’re talking about. We need to counteract that issue.
   Feel free to show this email to legislators, but FIRST, talk to them and ask them if they want to see it.
3. More steps will be coming soon, once legislative committee assignments are made.

Talking Points

The following statements attributed to individuals are characterizations of what was said, unless they are surrounded by quotes.

1. Mr. Cook (DLI representative) at the Nov. 17 meeting, suggested that massage therapists don’t have the experience or expertise to understand the changes to statute. Loosely translated as: I’m the expert and you’re not.
   Response:
   We disagree with this characterization about massage therapists, but we also consulted with our own legislative experts:
   • Laura Embleton, Director of Government Relations for Associated Massage & Bodywork Professionals (ABMP). She is an expert on massage therapy occupational licensing.
   • Staff from the Federation of State Massage Therapy Boards (FSMTB). The FSMTB membership consists of members from each state massage therapy board. As an organization providing services to regulatory boards, they are also experts in occupational licensing.

Both agree that eliminating language designating massage therapy as health care is problematic and that the scope (definition) of massage therapy does not adequately address the issue.

2. Mr. Cook: Massage as health care is covered by the definition (scope) of massage therapy. “Massage therapists already have … other statutory language that defines them as health care…” and “… even in statute, the definition of massage therapy there’s a reference to health care.”
   Response:
   • The definition of massage therapy MCA 37-33-403(4) does contain the word health care (“another health care practitioner”) but does not specifically state that massage therapy is health care. The words “restore health” are also included in the definition. But these sideways references are not enough to clarify that massage therapy is health care (see #1).
   • Ms. Embleton said that language designating massage as health care “isn’t usually found in the scope. It is in other areas.” For a good example, she referred back to the purpose statement that’s being deleted.
   • Our research showed that Oklahoma has a similar definition of massage therapy, yet Oklahoma massage therapists are NOT regulated as health care. Ms. Embleton confirmed this. Staff at the FSMTB also independently brought up Oklahoma as an example of how language in a definition does not guarantee health care status (from a conversation with someone else who is also in contact with the FSMTB).
     
     
3. Mr. Cook: Massage was health care before and the definition of massage will cover it now.
   Mr. Cook describes how massage was/is health care in the database.
   Response:
   If massage was treated as health care, that’s because the purpose statement says we are health care. When a statute is eliminated, that means that the status confirmed by that statute also is eliminated, despite what Mr. Cook says (see #2). If it’s not in statute, it is not enforceable. There is no guarantee that massage therapy will still be designated as health care once the statute changes.
   
   
4. Mr. Cook: “Our purpose for licensing is not to raise the profile or categorize your particular profession, it’s for us to set and enforce the standards to get into the licensing and to maintain it.”
   Response:
   • Per raising the profile: We are not looking to raise the profile of our profession, but maintain the status quo in statute. Again, if it’s not in statute, it is not enforceable. The legislature in 2009 saw fit to put this language in the purpose statement. If it no longer belongs there, we are amenable to moving it elsewhere, as long as the language is maintained in statute.
   • Per categorizing: While the purpose statement may not be the appropriate place for such language, the language designating massage as health care must be preserved: Unlike other health care professions, the massage therapy profession needs the clarification in statute because in some states massage therapy is considered health care and in some states it’s not (see #2c). We want to be sure that it remains clear – not make new law.
   • This is not the first time that DLI staff and others in the executive branch have either not treated us like health care or accused us of trying to expand our scope of practice:
     1. During the pandemic massage therapists were treated on par with cosmetologists and other service industry professionals as to when we shut down and when we resumed our practices. Individual massage therapists had to fight for their right to be treated like other non-essential health care professionals.
     2. During the September 2021 inaugural meeting of the HB 495 task force examining discriminatory practices by insurance companies, at least one member of the task force – all but one were on staff at DLI – accused us of trying to expand our scope. All we did was propose that the group consider anti-discrimination legislation similar to Washington state. This law clarifies that if a procedure (CPT code) is reimbursed for one profession, all professions who have that procedure within their scope of practice must also be reimbursed.

Again, all we are asking for is to maintain current statutory language designating massage as health care.

5. Implications for removing the language designating massage therapy as health care.
   Massage therapy occurs in a variety of settings, but what we do in all of those settings is considered health care. This variety of settings and the fact that massage therapy is regulated via its own, stand-alone board, confuses policymakers. That is why it is imperative that we continue to be designated as health care professionals. Below are some of the implications for not doing so. It is not to say that these things will happen. It just opens the door to the following possibilities.

• • It opens massage therapy up be regulated like adult entertainment (sexually-oriented business), not as a health care profession
  • The state can combine our board with the cosmetology board like in Oklahoma
  • Medical professionals who regularly refer to massage therapy may no longer do so because of the potential liability involved
  • The state can refuse to allow massage therapy reimbursement for workers comp
  • Insurance companies can refuse to pay for massage therapy for personal injury cases (motor vehicle collisions) even if a doctor orders it
  • State workers may lose the ability to be reimbursed by their flexible spending/health care benefits if massage is prescribed
  • It may affect massage therapists employed in medical settings (chiropractor offices, hospitals, medical clinics, hospice, etc.) as reimbursement could be denied and also because of liability issues.

In short, this particular change does not meet the intentions of the Red Tape Initiative, because it potentially makes it much harder for massage therapists to do business in Montana.

6. Our solution: Preserve language in the statute that designates massage as health care and strike everything else that pertains to the purpose statement.
   We think that this is a reasonable compromise that statutorily maintains the status quo and allows the Department to move forward in striking superfluous language.
   ABMP’s Embleton agrees.

Here’s what that would look like:

1. 1. Strike 37-33-402 from Section 216 AND
   2. Amend 37-33-402 to read:
      37-33-402. Purpose Designation as health care. (1) The legislature finds that the practice of massage therapy affects the health, safety, and welfare of the people of this state and declares that  tThe practice of massage therapy contributes to choice in health care.
      
      (2) It is the purpose of this chapter to regulate the massage therapy profession, to create a board of massage therapy that will issue massage therapy licenses in accordance with this chapter and the board’s rules, and to define the terminology describing competencies of the massage therapy profession.

If you have questions, please refer them to:

Deborah Kimmet, M.S.
Executive Director, Business League for Massage Therapy & Bodywork (BLMTB)
info@blmtb.org
406-544-4704

Thank you!