July 2021 BLMTB Update

Leave a Comment / Establishment Licensing, General, Human Trafficking & Prostitution, Legislation, Montana Massage Therapy Board /

This newsletter contains 
   – A quick summary
   – The details of what happened
   – An Education Corner: Why Massage Establishment Ordinances Are Bad

The TLDR (A summary)

The BLMTB has been busy advocating for massage therapy interests during the pandemic.

1. The Billings massage therapy establishment licensing ordinance passed.

  • Given the seriousness of how harmful establishment licensing is for our profession (Reminder, both ABMP and AMTA oppose it), and the likelihood that the proponents are taking it elsewhere in Montana, we are recruiting volunteers and have started fundraising to fight establishment licensing statewide.
  • To donate: https://gofund.me/605a6545
    (Note: Because the issue is political, donations are not tax deductible)
  • To volunteer: please send an email to info@BLMTB.com or call or text Deb at 406-544-4704.

2. The 2021 Legislative session is over.

  • At least 11 bills/bill drafts touched massage therapy or bodywork and 7 of them passed. 3 will minimally affect our practices. The 4th is a continuation of posting our licenses, which the BLMTB supported. The 5th concerns independent contractors and those who hire them. The 6th is a study of healthcare statutes in general and we’ll be following that closely. We may be able to piggyback on future legislation that may be of benefit for us. The 7th is probably the most impactful: It generally prohibits healthcare professionals (including massage therapists) from refusing to treat a client based on their vaccine status. You can ask a client their status, but they can refuse to answer. At that point, you can treat them as if they are unvaccinated, but you cannot refuse treatment.
    See below for the details.

3. The state massage therapy board is in trouble.

  • They can’t seem to get a quorum and new members are needed! We encourage massage therapists and a member of the public to apply. It got so bad that the board couldn’t weigh in on a piece of legislation that would have drastically harmed our profession.
    Apply here.
  • Plus, There were two bills that potentially opened up the scope of massage therapy and staff did not inform the board that this was occurring. Staff made a decision not to inform the board of this legislation until BLMTB Executive Director, Deb Kimmet, brought it to their attention. This is not right and is yet another example of how staff oversteps the line between administration and policy.

The Details

1. Billings Establishment Licensing Ordinance

  • What Happened: The Billings City Council and local anti-trafficking groups managed to convince the council that it was ok to impose regulation on massage therapists to help women being trafficked. We all oppose human trafficking, but the BLMTB opposed the ordinance because there are better ways to regulate the problem that don’t include harming massage therapists or putting us at risk (see our Education Corner at the end of the email/post).
  • The concern: The proponents of the ordinance have said they will take this regulatory scheme statewide or at the very least down the I-90 corridor to Bozeman and Missoula.
    A Billings city council member told us that the proponents want to expand their efforts and we intend to stop them. We don’t like human trafficking either and we don’t like them hiding out in our profession, but you don’t regulate us to get to them. There are better ways to get at the problem.
  • We are looking for volunteers to work on these issues – if you are interested, please send an email to info@BLMTB.com or call or text Deb at 406-544-4704.
    You can be involved a little or a lot. Just let us know.
  • Fundraising to stop establishment licensing.
    The Massage Therapy Defense Fund is now officially open.
    This fund will be administered by the BLMTB. As a non-profit, 501(c)(6), we can collect monies to advocate for issues that affect our profession without the tax implications that an individual would face. We can’t get involved in elections, but we can advocate on the issues. We will continue to do what we can on a volunteer basis, but we think we’ll need to hire lobbyists and lawyers to plead our case. If everyone gives a little, we can do a lot!
    To contribute: https://gofund.me/605a6545
    (Note: Because the issue is political, donations are not tax deductible)

     

  •  Educational Opportunity: Deb Kimmet will put together a class on Human Trafficking soon. Keep an eye out for more information on this.

  • Go to the end of the update for our Education Corner: Why Massage Establishment Ordinances Are Bad
  • We’ll keep you posted on our next steps.

2. Legislative Update

There’s a lot coming up in the next two years… and we’re going to need help to support and fight the bills we anticipate. That’s why our Massage Therapy Defense fund is so critical. For example, HB495 is a bill that, if we play our cards right, could elevate our standing. On the flip side, Human Trafficking bills could harm us tremendously. See how to donate above.

First, we want you to know just what legislative monitoring entails by the numbers:

  • 3367 – The total number of bill drafts. We screened every one to see if they might remotely affect LMTs. It’s helpful to do this as it gives you an opportunity to read a bill before it’s introduced or talk to a sponsor to find out what it will cover. For example, we spoke to most of the legislators requesting human trafficking bills just to see what they had in mind.
  • 1313 – The total number of bills introduced and screened to see if they impacted LMTs.
  • 50 Bills + 170 Bill Drafts – Followed through the legislative session to make sure that they either weren’t amended or introduced in a way that would affect LMTs.
  • 9 – The number of bills/bill drafts that the BLMTB discussed with legislators and either actively supported or opposed. These included 5 human trafficking bills/bill drafts. They also included 4 healthcare licensing bills/bill drafts. Some bills we didn’t bother with because other professions had it handled or we felt it wouldn’t make a difference.

The Bills That Passed of interest to us:

  • HB 234 – Passed. This bill tweaks HB749 from the 2019 session. It makes permanent the provision that requires posting of massage therapy licenses and allowing their inspection. It was also changed to allow state law enforcement the ability to inspect as the language was ambiguous on that. The BLMTB Board supported this bill and actively lobbied in favor.
  • HB 702 – Passed. (HB 703, a similar bill, did not pass) This bill prohibits discrimination based on vaccine status or possessing an immunity passport. We are subject to its provisions because it applies to all businesses and access to healthcare. Specifically:
    • Massage Therapists cannot discriminate against or refuse to treat a client on the basis of their vaccine status (unless you work in a medical facility specifically mentioned in the law – and our offices – unless they are inside of a hospital or rehab center do not meet that definition).
    • An employer can ask about employee’s status but cannot discriminate based on that.
  • HB 495 – Passed. It appoints a health care provider task force that will “make recommendations on statutes, rules and policies that are duplicative and inconsistent with current health care provider practices”. Members include representatives from the board of medical examiners, board of nursing, the department of public health and human services, and the insurance commissioner’s office. Other stakeholders will be added as required.
    • This bill developed out of the nurse practitioners claiming that insurance companies were not reimbursing them for prescriptive services. Well, you could say the same applies to us – we are relegated to reimbursement for massage (97124), which describes the 5 Swedish massage strokes. And they don’t reimburse for manual therapy (97140), which describes NMT, MFR, MLD, etc., which clearly is in our scope of practice. The massage code pays less and is not necessarily descriptive of the services we provide.
    • We would definitely support any legislation that outlines that if a modality is paid for in one profession, it must be paid for in all professions whose scope includes that modality.
    • Plus, there were a whole slew of other ways we are not treated the same as other healthcare professions.
      We’re going to keep a close eye on this one. 
  • HB 295 – Passed. This law allows social workers and therapists to treat chronic pain. For those of you pain science adherents, this is good news. Now, you can seek out and refer to those mental health specialists who now can legally treat for the individuals’ perception of chronic pain.
  • SB 121 – Passed. It redefines the acupuncture. For those who practice bodywork but are not LMTs, SB 121 looks concerning on first blush, but it’s not. It includes the term bodywork in the revised definition of acupuncture, which under normal circumstances would mean that the profession now owns the term. What’s not in the bill, but is in a different section of the acupuncture law, is a provision that as long as a person doesn’t claim to be an acupuncturist, a bodywork practitioner can practice bodywork (MCA 37-13-104(3) )
  • HB 593 – Passed. It revised the cosmetology statutes. In the early versions, it opened up the massage therapy statute, but these sections were amended out in later versions. HB 493, another cosmetology bill that altered the massage therapy statutes, failed. See the update on the state board below.
  • SB 367 – Passed. An employment law. Prior to passage of this bill, if an independent contractor (IC) didn’t have an IC exemption certificate, they were automatically assumed to be an employee of the business. Since it’s up to the IC to get the exemption, employers didn’t have a lot of control over this, particularly if the IC lied about their status. Now it puts the onus squarely on the IC instead of on the employer, which makes it better for the employer. And on a related topic… employee misclassification is rampant in our industry by unscrupulous employers. So it’s important for workers to understand the difference between an employee and an IC and make sure that there’s no misclassification going on.

Bills that didn’t pass but were of note.

  • LC0050 & LC0055 – Neither were introduced but LC0050 would have eliminated all of the boards and placed regulation of healthcare professions under the Board of Medical Examiners. It raised a stink and every profession lobbied against it, so our role was not very important, but the BLMTB did participate in its defeat.
    • See more about this under #3 below about the state board.
    • LC0050 was withdrawn and re-tooled to be a study resolution, so it looks very different than the original version. But it was never introduced.
    • LC0055 would have made the Board of Medical Examiners the referee in any disputes between professions. It also was not introduced. Interestingly enough though, the Montana Chapter of the American Physical Therapy Association showed up at the state massage therapy board meeting to discuss both bills. The meeting couldn’t officially happen as there was no quorum. See #3 below.

3. The Montana Massage Therapy Board is in Trouble...

  • The board has not been able to make a quorum the last 2 times it met. This is deeply concerning. Specifically, the public member rarely shows up, one massage therapy member whose term has expired no longer attends and another has not attended the last few meetings.
    • The real-world application of not being able to meet? Non-routine applications cannot move forward and the Board was one of the only professional boards not to weigh in on LC0050 & LC0055. It makes us look bad. It makes us look unprofessional.
      We think that those not showing up regularly should be replaced.
      Apply here      .
  • We are also concerned that the staff is yet again overstepping its role. We believe that the board should be notified any time legislation is introduced that incorporates massage therapy statutes or affects the practice of massage therapy. Both HB593 (in the earlier versions) and HB 493 opened up the massage therapy statutes. These were both cosmetology bills. And in the case of HB 593, language in our statutes  was actually changed! And the board didn’t even know about it until we called attention to it. In the staff attorney’s opinion, the change didn’t make a difference. In our opinion, we believe that it did (a course and a program imply two different things). Fortunately, this language was mended out. But, the larger questions are, why are cosmetologists changing our statutes without discussing it with our board? And why didn’t staff notify the board that this was happening?  Again, we believe that staff either is incompetent  or  decided for the board that it didn’t matter – which again, crosses the line into policy matters. It really is up to the board to make those determinations.

Education Corner: Why Massage Establishment Ordinances Are Bad

This is by no means an exhaustive explanation. We just want to cover some of the reasons why.

  •  Both the AMTA and the ABMP oppose establishment licensing as it is currently being done. A healthcare profession should not and is not responsible for solving a criminal enterprise.

     

  • These laws simply don’t work to curb human trafficking. They just shove the problem around. Billings city officials touted Aurora, CO as the model city on trafficking ordinances. Yes, they are: Aurora is a textbook example of how these laws don’t work.
    • First, most of the places that supposedly were shut down in Aurora just moved down the road.1
    • And second, Aurora city officials claimed that they shut down all of the sex parlors in their city. This simply isn’t true: A local (Billings, MT) retired law enforcement officer who had previously worked on human trafficking issues did a little investigation of his own. He found 58 sex parlors listed in Aurora. Since he knew what to look for, we believe him when he says that the problem is still there.

  • These laws put massage therapists in danger by allowing sex parlors to hide in our profession. Not only do massage therapists have to keep their doors unlocked (a huge safety issue) it exposes massage therapists to harassment from sex buyers. You see, if a sex parlor can look more like a legal massage therapy business, they can hide out in our profession. All they have to do is follow the law’s provisions and they won’t be bothered. This means that sex buyers will harass us trying to find those sex parlors hiding in our midst.
    When news of the proposed ordinance hit Billings, calls and lewd texts skyrocketed. Multiple therapists said that they hadn’t had these types of problems in years and now it was happening regularly, even daily. A few even had sex buyers show up at their offices looking for sex. Given what happened in Atlanta, where at least one of the businesses was not a sex parlor and where massage establishment laws are in place, that directly puts a target on our backs.

  • These laws target the wrong people. Massage therapy isn’t adult entertainment, don’t regulate us like we are. The language in these laws is a relic of the days when massage therapy was regulated as adult entertainment. The problem with this language is that it assumes that all massage therapists are doing bad things that need to be regulated. For example, the law in Billings says that massage therapists must wear clothes and not expose their genitals. These folks aren’t massage therapists. They are criminals and they are the ones doing the bad things. We’re a healthcare profession and should be regulated as one, not as adult entertainment.

  • Massage therapists must follow the laws too which can interfere with our scope of practice. The proponents say they aren’t targeting massage therapists, but instead are targeting the criminals. If that were true, massage therapists would not have to follow all of these laws too. But we do because that’s how laws work. You can’t tell some people that they don’t have to follow the law and others that they do. Here are some examples of how this law interferes with our scope of practice:
    • Coconut oil is a sexual lubricant and would be banned under the Billings Ordinance.
    • Specialized work that requires KY jelly (nasal cavity and pelvic floor work allowed by our scope of practice in Montana) would also be banned.
    • Labor massage: If a woman goes into labor during restricted hours (10pm to 6am), her massage therapist would not be allowed to treat her during that time.
    • Shift work: If a massage therapist works early or late to accommodate special clients (think performers visiting from out of town or shift workers), they can’t treat them.

  • And when have you heard of an exemption from the law where the person has to still follow the law? We haven’t either, but that’s what’s in the Billings’ law. Solo practitioners don’t have to get the license but they still have to follow all the restrictions in the law plus some additional ones on advertising. And all of that can arbitrarily change without warning, as the city administrator has the power to decide who is and isn’t exempt.

There’s a whole lot more but we think you get the idea. These laws treat a healthcare profession as adult entertainment and go through us to get to the criminals. In short, these laws make us responsible for a criminal activity. Even anti-trafficking experts agree with us that these laws are a bad idea.2

Stay tuned for more information.

Thanks for reading!

Vianna, Patty & Susan – BLMTB Board members

Deb, Executive Director

 

  1. Newman, Z., & Jojola, J. (2019, August 6). Businesses shut down for suspected human trafficking in Aurora reopen just a few miles away. WNEP. Retrieved from https://www.wnep.com/article/news/investigations/businesses-shut-down-for-suspected-human-trafficking-in-aurora-reopen-just-a-few-miles-away/73-555df664-b8de-404a-92b2-0e32ad7be92f[↩]
  2. Bouché, V. (2021, February 2). COMMENTARY: Texas laws attempting to regulate the illicit massage industry are burdening the wrong people. Fort Worth Business Press. Retrieved from https://fortworthbusiness.com/opinion/since-1985-massage-therapy-has-been-a-regulated-health-care-profession-in-the-state-of-texas/?fbclid=IwAR1uXmN1z99bdBhlevjcypIrw3jyhiNXAjrYkaEedxEzpckBbJAUrV4_qjc[↩]

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