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Clarifying the Confusion on Massage
By Paul Lambert, FCA General Counsel   
Friday, 05 September 2014

Do you need a massage establishment license, fingerprinting, or a criminal background check if you do massage in your office?

      The Department of Health has sent letters to each massage establishment licensee advising that each person with an ownership interest in a massage establishment must be finger printed and have a criminal background check by January 31, 2015 based upon a bill that passed the 2014 Legislature. The letter  does not mention that physicians may be exempt from that requirement or massage establishment licensure altogether. However, the Department assures me that a memorandum is being mailed explaining the exemption. Following is a discussion of the bill and exemptions from it.

     Chiropractors holding massage establishment licenses may be exempt from finger printing and criminal background checks required by January 31, 2015. Effective July 1, 2014 physician owned practices that employ licensed massage therapists who only treat patients are exempt from the requirements of the massage establishment statute.1 Physician owned practices that use massage therapists as independent contractors or who accept non-patients for massage are not exempt from the massage establishment statute, because they are, in essence, operating a spa.

      However, physicians owning a practice that accept non-patients for massage or use massage therapists as independent contractors and who were fingerprinted and had a criminal background check after January 1, 2013 do not have to again be fingerprinted and have another background check.2

      Chiropractors who employ massage therapists to massage-only patients and are exempt should consider voluntarily surrendering the massage establishment license to avoid pressure from the Department of Health to be finger printed. A chiropractor holding a massage establishment license is subject to all regulations of the establishments, including finger printing and criminal background checks, as long as the massage establishment license is extant. The Department of Health assumes that a chiropractic practice is not exempt, if it holds a massage establishment license.

      A massage establishment license may be voluntarily surrendered by sending the original license to Mathew Thompson, Regulatory Supervisor, Board of Massage, Department of Health, 4052 Bald Cypress Way Bin-C-06, Tallahassee, FL 32399 with a letter stating:

This massage establishment license # xxx is voluntarily surrendered. §456.043, Florida Statutes, (2014), does not apply to this practice, because the practice is owned by (name of doctor(s) owner(s)), DC, and employs massage therapists to work solely on patients of the practice. See §456.043(13), Florida Statutes, (2014).

      In an effort to address illicit behavior at massage establishments, the Florida Legislature passed HB 1065 during the 2014 legislative session. HB 1065 proposed to require criminal background checks of all massage therapists and anyone owning an interest in a massage establishment. The FCA lobby team successfully lobbied an exemption to massage establishment regulation for chiropractors, allopaths or osteopaths employing licensed massage therapists who perform massage on the physicians’ patients at the physicians’ places of practice. That exemption is found at §480.043(3), Florida Statutes, and reads:

(13) This section does not apply to a physician licensed under chapter 4583, chapter 4594, or chapter 4605 who employs a licensed massage therapist to perform massage on the physician’s patients at the physician’s place of practice. This subsection does not restrict investigations by the department for violations of chapter 4566 or this chapter.

      FAQs: Following are answers to questions by members applying the above information.

1.    Q: If my LMT is an independent contractor, do I need to have an establishment license?  A: Yes, the operative sentence of the exemption reads: “This section does not apply to a physician licensed under . . . chapter 460 who employs a licensed massage therapist to perform massage on the physician’s patients at the physician’s place of practice.” An independent contractor is not an employee.

2.    Q: The LMT is an independent contractor that rents a room from me, but keeps her own records and collects the fee for the massage from the person and processes the payment herself.  Am I required to have a massage establishment license?  A: This question describes a LMT who has a business independent of the landlord chiropractor. In this case, it is the LMT’s responsibility to maintain a massage establishment license.

3.    Q: Is a massage establishment license required if the LMT is employed by the chiropractor and provides massages at health fairs? A: Yes, the operative sentence of the exemption reads: “This section does not apply to a physician licensed under . . . chapter 460 who employs a licensed massage therapist to perform massage on the physician’s patients at the physician’s place of practice.” A health fair is not the physician’s place of practice.

4.    Q: Is a massage establishment license needed if the employed LMT is performing massages on patients when the chiropractor is not in the office? A: No. A LMT is licensed to perform massages independently of a physician’s supervision. A massage establishment license is not needed as long as the LMT only performs massages on the doctor’s patients in the office.

    

1 See §480.043(13), Florida Statutes, created by Section 4 of Chapter 2014-139, Laws of Florida. §480.043 regulates massage establishments.

2 See §456.0135(1), Florida Statutes, (2014).

3 Chapter 458 regulates allopathic physicians.