Grounds for Disciplinary Action

About 28 minutes · s. 480.046(1)–(2), F.S.; s. 456.072(1), F.S.; Rule 64B7-23.011, F.A.C.

18.1 Two lists, one system

A Florida massage therapist can be disciplined under two overlapping statutes.

• Section 480.046(1) lists acts that are grounds for denial of a license or disciplinary action under the Massage Therapy Practice Act. It is specific to this profession.
• Section 456.072(1) lists grounds that apply to every health care practitioner the Department regulates. Chapter 480 says so expressly: the Board may deny licensure or impose penalties against any applicant or licensee "found guilty of violating any provision of subsection (1) of this section or ... any provision of s. 456.072(1)" (s. 480.046(2)). Proceedings are conducted under Chapter 120 (s. 480.046(6)).

The two lists are cumulative. Many acts fit both, and the Board may charge under either or both. This chapter does not repeat what earlier chapters taught. Instead, it gives you a finder that shows where each ground was covered and then explains the grounds that are new here. The penalties the Board may impose, and how a case moves from complaint to final order, are Chapter 19.

18.2 Why discipline exists

Students sometimes read a list of grounds for discipline as a list of traps. A better way to read it is as a description of what the public needs from a licensed professional. Each ground answers the question: what must a client be able to rely on when she lies down on a table and trusts a stranger?

Honesty at the door. A client relies on the fact that the Board checked who entered the profession. Grounds about fraud in obtaining a license, and about discipline elsewhere, protect that gate.

Safe and competent hands. A client relies on the therapist to assess, explain, drape, obtain consent and work within her training. The standard of care and the rules that illustrate it protect this.

Clear thinking. A client relies on the therapist to be fit to practice. The impairment grounds protect this, and they also offer a route to treatment.

Honest dealing. A client relies on the therapist not to deceive, pressure or cheat her. The grounds on deceptive representations, false reports and financial influence protect this.

Respect for boundaries. A client relies on the therapist to keep the relationship professional. The sexual misconduct grounds in Chapter 16 protect this.

A system that works. The public relies on the regulatory system itself. The grounds that punish defying orders, refusing inspections, interfering with investigations and failing to report violators protect it.

Seen this way, the list is not a long collection of unrelated rules. It is five promises and a system that enforces them. A therapist who keeps the promises will rarely come close to a ground for discipline.

18.3 The grounds finder

The rest of this chapter takes the "Below" items in turn.

18.4 Using the finder in practice

The grounds finder is a study tool, and it is also a practical one. Here are four ways to use it.

As a self-audit. Once a year, read down the first column and ask whether anything in your practice could raise the ground. Look at your scope of practice, your advertising, your records, your premises, your continuing education and your address on file. You will often find a small problem before it grows.

As a map for a new employer. If you are starting a job, use the finder to ask what the establishment does about each ground. Does it verify licenses? Does it keep sanitation records? Does it have a trafficking procedure? A workplace that has good answers is a safer place to build a career.

As a way to read a complaint. If you ever receive a complaint, the finder helps you see which grounds the Department may have in mind and which chapters describe the duties. It does not replace an attorney, but it helps you ask good questions.

As a way to teach. A manager or owner can use the finder in staff training. Pick one ground a month and discuss real examples from the workplace.

The finder also reveals a pattern. Most grounds point back to earlier chapters because most are failures of ordinary duties. The few that are new, such as fraud, discipline elsewhere, crimes, impairment and defiance of the process, concern character and honesty more than technique.

18.5 Fraud in obtaining a license

Section 480.046(1)(a) lists "attempting to procure a license to practice massage therapy by bribery or fraudulent misrepresentation." Section 456.072(1)(h) is broader: "attempting to obtain, obtaining, or renewing a license to practice a profession by bribery, by fraudulent misrepresentation, or through an error of the department or the board." The second phrase is significant. If the Department issues or renews a license by mistake and you knew or later learn that you were not entitled to it, keeping it can itself be a ground. Chapter 5 gave the application-honesty point; Chapter 7 added that endorsement licenses may be revoked for misleading or omitted information.

18.6 Discipline in another jurisdiction

Under s. 480.046(1)(b), it is a ground to have "a license to practice massage therapy revoked, suspended, or otherwise acted against, including the denial of licensure, by the licensing authority of another state, territory, or country." Section 456.072(1)(f) goes further and covers any regulated profession in any jurisdiction, for a violation that would constitute a violation under Florida law, and adds that "the licensing authority's acceptance of a relinquishment of licensure, stipulation, consent order, or other settlement, offered in response to or in anticipation of the filing of charges against the license, shall be construed as action against the license." In other words, quietly surrendering a license to avoid charges counts as discipline. It also means a nurse who is also a massage therapist can face Florida massage discipline because of action taken on the nursing license elsewhere, if the underlying conduct would violate Florida law.

18.7 Crimes

The practice-related crime ground. Section 480.046(1)(c) makes it a ground to be "convicted or found guilty, regardless of adjudication, of a crime in any jurisdiction which directly relates to the practice of massage therapy or to the ability to practice massage therapy," adding that "any plea of nolo contendere shall be considered a conviction for purposes of this chapter." Section 456.072(1)(c) is similar (a crime that "relates to" the practice of, or the ability to practice, the profession). The key phrases are regardless of adjudication and nolo contendere, which Chapter 6 explained.

This ground is discretionary in a way the mandatory-denial list is not. Chapter 6's s. 480.041(6) removes the Board's choice for specified serious offenses. Section 480.046(1)(c) asks whether a crime relates to the practice or the ability to practice. A conviction for theft from a client, for instance, relates to practice; a speeding ticket does not.

Self-reporting. Section 456.072(1)(x) makes it a ground for discipline to fail "to report to the board ... in writing within 30 days after the licensee has been convicted or found guilty of, or entered a plea of nolo contendere to, regardless of adjudication, a crime in any jurisdiction." Note the breadth: a crime, not only practice-related crimes. A licensee who is convicted of any crime, or pleads no contest to one, must tell the Board in writing within 30 days. A conviction hidden until renewal produces a second problem on top of the first.

Health care fraud crimes. Section 456.072(1)(ll) adds a ground for a conviction or plea, regardless of adjudication, of any crime in any jurisdiction related to health care fraud, and the paragraphs around it address Medicaid and Medicare offenses. Section 456.072(1)(ss) covers conduct that would violate offenses listed in s. 456.074(5) (Chapter 19). Therapists who bill insurers should read these closely; related grounds punish submitting upcoded bills or bills for services not rendered in personal injury protection claims (s. 456.072(1)(ee), (ff)).

18.8 A self-reporting checklist

Several grounds punish silence more than they punish the underlying event. A therapist who understands what must be reported, and to whom, avoids an extra violation on top of the first. The list below gathers the duties described in this course. It is a study aid and not a complete list of every reporting obligation a licensee may have.

Four habits keep these duties manageable.

Keep a "significant events" file. Whenever something happens that could affect your license, write down the date, what occurred and what you did. A short, dated note is valuable later.

Calendar the deadline. The 30-day period for reporting a criminal outcome starts running when the licensee has been convicted, found guilty or entered the plea. Put a reminder on your calendar the same day.

Keep proof of what you sent. Send the report in a way that creates a record, and keep a copy. If a question arises later, you can show when and how you reported.

Ask when in doubt. If you are not sure whether an event must be reported, ask the Department or the Board in writing, and keep the answer. A therapist who asked and followed the answer is in a far better position than one who guessed.

18.9 Aiding the unlicensed

Section 480.046(1)(f) lists "aiding, assisting, procuring, or advising any unlicensed person to practice massage therapy contrary to this chapter or to a rule of the department or the board." Section 456.072(1)(j) adds employing an unlicensed person. A therapist who lets an unlicensed friend take her clients, an owner who staffs a room with someone whose license lapsed, and a manager who looks away are all within these grounds. Delegation, covered in Chapter 3, is a related but different concept. The separate criminal offenses for permitting an unlicensed person to practice, and for allowing another to use your license, are in Chapter 20.

18.10 Verifying licenses: a routine for owners and managers

Because aiding, assisting or employing an unlicensed person is a ground for discipline, and because an establishment can lose its license when someone who provides massage therapy services has a listed record, license verification is among the most valuable routines an owner can adopt.

Verify before the first shift. Before a new therapist works with clients, confirm on the Department's public license lookup that her license is active and that her name and number match her identification. Print or save the result with the date.

Verify again on a schedule. A license that was active last year may have lapsed. Check each therapist's status monthly or at least before each renewal period, and keep dated records.

Check the person, not only the paper. A paper copy of a license can be altered, and a number can be borrowed. Compare the lookup result with the person's photo identification.

Watch for borrowed licenses. The statutes address the offense of presenting another person's license as your own or allowing your license to be used by an unlicensed person. If a person's name does not match the license, stop and ask.

Do not accept "pending." A graduate who is waiting for a license has no license. She may not provide massage therapy services for pay until it is issued, and a promise that it is "in the mail" is not a license.

Treat contractors the same as employees. An independent contractor therapist working in the establishment must also hold an active license. The owner's duty is not reduced by the contract label.

Keep a roster. Maintain a roster of every person providing massage services, with license numbers, verification dates and expiration dates. Update it whenever staff change.

Act on a problem the same day. If a lookup shows an expired or inactive license, take the person off the schedule at once, and tell the person what to do to resolve it.

Ask about records of discipline. The establishment-level consequences in Chapter 16 depend on listed disciplinary actions and convictions of the owner, the manager and anyone providing massage therapy services. Ask applicants about them directly, and keep the answers confidential.

18.11 Deceptive and fraudulent representations

Section 480.046(1)(g) makes it a ground to make "deceptive, untrue, or fraudulent representations in the practice of massage therapy." Section 456.072(1)(m) is the parallel, and also covers employing a trick or scheme. Two related grounds are worth knowing: exercising influence on the patient or client for the financial gain of the licensee or a third party (s. 456.072(1)(n)), and making or filing a report the licensee knows to be false, or intentionally or negligently failing to file a report or record required by state or federal law (s. 456.072(1)(l)). The advertising applications of these grounds are in Chapter 17. In practice, the first covers pressure to buy unnecessary packages or products; the second covers false documents and missing required records (Chapters 10 and 13).

18.12 Impairment

Section 480.046(1)(h) makes it a ground to be "unable to practice massage therapy with reasonable skill and safety by reason of illness or use of alcohol, drugs, narcotics, chemicals, or any other type of material or as a result of any mental or physical condition." The provision has procedural teeth:

• Compelled examination. "Upon probable cause, [the department] may compel a massage therapist to submit to a mental or physical examination by physicians designated by the department."
• Refusal is an admission. A failure to submit "unless the failure was due to circumstances beyond her or his control, constitutes an admission of the allegations against her or him, consequent upon which a default and final order may be entered without the taking of testimony or presentation of evidence."
• A path back. A therapist affected "shall at reasonable intervals be afforded an opportunity to demonstrate that she or he can resume the competent practice of massage therapy with reasonable skill and safety to clients."

Chapter 456 adds parallel and related grounds. Section 456.072(1)(z) is the general impairment ground, with the Department able to compel an examination on a finding of probable cause by the State Surgeon General or designee and to enforce the order in circuit court if the licensee refuses. Section 456.072(1)(aa) covers testing positive for any drug on a confirmed pre-employment or employer-ordered drug screening when the practitioner has no lawful prescription and legitimate medical reason. Section 456.072(1)(hh) covers being terminated from an impaired practitioner program for failure to comply, without good cause, with the monitoring contract or for not completing treatment. The impaired practitioner programs themselves, which offer a confidential route for therapists who seek help, are part of the process described in Chapter 19.

A licensee who knows another practitioner is unable to practice safely because of impairment may report to a consultant operating an impaired practitioner program instead of the Department (s. 456.072(1)(i)). The ground for failing to report a violator is covered below.

18.13 Fitness to practice: a practical view

Impairment is a sensitive subject, and it is easy to treat it as something that happens to other people. In fact, therapists work in a physically demanding job with long hours, emotional strain and, sometimes, personal stress. A therapist who understands the rules and the supports can act early.

What the law cares about. The question is whether the therapist can practice with reasonable skill and safety. Illness, substance use, or a mental or physical condition can bear on that question. The ground concerns inability to practice safely, not the mere existence of a condition. A therapist who manages a condition well and practices safely is not the target.

Warning signs in yourself. Tiredness that affects judgment, difficulty concentrating, mood changes that affect your work, use of substances to cope or to function, hand or arm pain that limits safe technique and anything that makes you less safe with a client are all signals. Take them seriously.

Reasonable steps. Reduce your schedule when needed. Take breaks. See a physician or counselor. If a physical problem limits technique, change your approach, or stop certain work until you recover. Do not work with clients when you are not fit to do so.

An impaired practitioner program. The text reviewed for this course describes impaired practitioner programs as a confidential route for those who seek help. Chapter 19 explains the process. A therapist who is struggling can ask the Department how to reach the program.

If a colleague seems impaired. If you know that another practitioner cannot practice safely because of impairment, the statute allows you to report to an impaired practitioner consultant instead of the Department. Speak to the manager or owner if you work in an establishment. Do not cover for a colleague who is putting clients at risk.

What an employer can do. An owner can adopt a clear policy on fitness for work, explain what to do if a worker is unwell, make it easy for a worker to step away without penalty and treat information about health with care. A drug screen, if the establishment uses one, should be applied consistently, and the result should be kept confidential.

The compelled examination. If the Department has probable cause, it may compel an examination. A therapist who receives such an order should respond promptly and consult an attorney. Refusing, without circumstances beyond her control, is treated as an admission and can lead to a default, so ignoring it is the worst course.

The path back. The statute provides that an affected therapist shall at reasonable intervals be afforded an opportunity to demonstrate that she can resume competent practice. The law does not treat the matter as permanent.

Medications and prescriptions. Taking medication that is lawfully prescribed, with a legitimate medical reason, is different from testing positive without one. Do not rely on this chapter for medical or legal advice about a particular medication. Ask your physician and, if a question arises about a screen, consult an attorney.

18.14 The standard of care and Rule 64B7-23.011

Section 480.046(1)(i) lists "gross or repeated malpractice or the failure to practice massage therapy with that level of care, skill, and treatment which is recognized by a reasonably prudent massage therapist as being acceptable under similar conditions and circumstances." That is the standard of care: not perfection, not the best practitioner, but what a reasonably prudent massage therapist would do in the same situation.

The Board's Rule 64B7-23.011 implements the paragraph. It says that failure to practice "with the level of care, skill and treatment which is recognized by a reasonably prudent similar massage therapist as acceptable under similar conditions and circumstances constitute[s] misconduct and negligence in the practice of massage therapy," and lists twelve examples. The twelve are best learned by tying each to the chapter where the underlying duty was taught.

Two points about this list. First, the examples are illustrations: the rule's introductory sentence defines the standard, and conduct that falls below it can be misconduct even if it is not one of the twelve. Second, the list shows how practical the standard is: eleven of the twelve are failures of process (assess, explain, consent, drape, protect confidentiality, get approval) rather than unusual technical errors. A therapist who follows the workflow in Chapter 10 has done most of what the standard asks.

The Chapter 456 counterpart is s. 456.072(1)(bb): performing or attempting to perform health care services on the wrong patient, a wrong-site procedure, a wrong procedure, an unauthorized procedure, or a procedure that is medically unnecessary or unrelated to the patient's condition, where "performing or attempting to perform health care services includes the preparation of the patient." Treating an area the client did not consent to treat, or a technique not agreed on, is an unauthorized procedure.

18.15 Meeting the standard of care day to day

The standard of care is easier to meet when it is turned into habits. The sequence below follows a typical session, and ties each step to a duty in the rule. It is a teaching model and not a protocol that replaces your own training.

Before the session. Greet the client, explain the process and complete the intake. Ask about health history, medications, areas of concern and goals. Note any findings that warrant caution or a referral. Duty: assess properly.

Explain draping. Tell the client how you will drape and which areas will be uncovered at different times. Ask whether she has questions. Duty: explain draping.

Obtain informed consent. Explain what you plan to do, any risks or limits, and ask for consent. For a minor, obtain it from a parent or guardian as the rule requires. Duty: informed consent.

Leave the room while the client undresses and gets on the table. Give clear privacy. Knock before you return.

Drape throughout. Keep the client appropriately draped for the whole session. Duty: drape appropriately.

Before undraping any area that requires specific consent. Explain what you will do and why, and obtain specific consent. Document it. Undrape only as agreed. Duty: specific consent; undraping consistent with consent.

Check in. Ask about pressure and comfort. Watch the client's response. Adjust or stop if she has pain or discomfort.

Stay within your training. If a client asks for a technique you are not trained to perform, decline, and refer. Duty: competence and qualification.

Avoid treatment that poses a significant health risk. If an assessment suggests a risk, such as a finding that warrants medical evaluation, do not proceed with that treatment. Refer, and explain why.

Protect confidentiality. Keep the record private, discuss the client only as permitted and store the file securely. Duty: confidentiality.

Record the session. Complete notes promptly, including findings, consent, techniques and any concerns.

Follow up as appropriate. Offer self-care suggestions that are within your scope, and invite the client to let you know how she feels.

Events and special settings. If you work at a sporting event, convention or trade show, make sure you have written approval first. Duty: written approval.

Every one of these steps takes a minute or less. Together they are the standard of care in practice. A therapist who does them every time is protected, and so is the client.

18.16 Orders, inspections and interference

Four grounds protect the integrity of the regulatory process itself:

• Violating a lawful order of the Board or Department previously entered in a disciplinary hearing, or failing to comply with a lawfully issued subpoena of the Department (s. 480.046(1)(l); s. 456.072(1)(q)). A therapist on probation who violates its terms faces new charges.
• Refusing to permit the Department to inspect the business premises of the licensee during regular business hours (s. 480.046(1)(m)). This ties to the inspection regime in Chapter 12.
• Improperly interfering with an investigation or inspection authorized by statute, or with any disciplinary proceeding (s. 456.072(1)(r)). Destroying records, coaching witnesses and retaliating against a complainant are examples.
• Failing to report a violator. A licensee who knows that another person is in violation of Chapter 456, the chapter regulating that person, or the rules, and fails to report to the Department, commits a violation (s. 456.072(1)(i)), subject to the impaired-practitioner exception above. This is the general counterpart to the specific sexual-misconduct reporting duty in Chapter 16.

18.17 What to do if you hear from the Department

Receiving a letter or call from the Department can be frightening. How a therapist responds in the first days often shapes the outcome. This section gives a model of sensible steps. It is general information and not legal advice, and a licensee who faces a complaint should consider consulting an attorney who handles professional licensing matters.

Stay calm and read everything. Read the letter or notice carefully. Note any deadlines. Do not ignore it.

Do not destroy or change anything. Preserve records, messages, schedules and equipment. Altering or discarding records can be treated as interference with an investigation.

Do not contact the complainant. Contacting a client who complained, to discuss or pressure her, can be seen as retaliation or interference.

Respond on time. Missing a deadline can lead to consequences. If you need more time, ask in writing before the deadline.

Comply with subpoenas and inspections. Failing to comply with a lawfully issued subpoena, or refusing an inspection of the premises during regular business hours, is itself a ground for discipline.

Be truthful. A false statement to the Department creates a new problem on top of the original one. If you do not remember something, say so.

Get advice early. An attorney can explain the process, your options and your rights. Professional liability insurance may also provide help, so check your policy.

Tell the people who need to know. If you work in an establishment, the owner or manager may need to know, particularly if the matter affects the establishment. Keep the circle small.

Keep working carefully. Continue to follow the rules in your daily practice. A therapist who continues to meet the standard is better placed than one whose practice slips under stress.

Take care of yourself. A complaint can be stressful. Talk with a trusted person, and consider counseling if the stress affects you.

Chapter 19 explains the stages of the process and the penalties that the Board may impose. The point here is that how a licensee behaves after the first letter arrives is itself part of the story.

18.18 Sanitation, rule violations and the catch-all

Sanitation. Section 480.046(1)(n) lists "failing to keep the equipment and premises of the massage establishment in a clean and sanitary condition." The standards that define clean and sanitary are in Rule 64B7-26.003 (Chapter 13).

Violating the law or the rules. Section 480.046(1)(p) makes it a ground to violate "any provision of this chapter or chapter 456, or any rules adopted pursuant thereto." Section 456.072(1)(b) covers intentionally violating a rule, and s. 456.072(1)(dd) covers violating any provision of Chapter 456, the applicable practice act or the rules. These are the catch-all grounds. This is why Chapter 1 taught that a valid rule has the force of law: a violation of a rule alone can be enough to discipline you.

Section 456.072(1)(k) adds failing to perform any statutory or legal obligation placed upon a licensee (with an exception for failing to repay certain student loans). Section 456.072(1)(w) covers failing to comply with the requirements for profiling and credentialing, including giving false information on a profile or renewal.

One caution on grounds that do not apply. Some general grounds depend on other statutes that list the professions they cover. For example, s. 456.072(1)(e) (failing to comply with HIV/AIDS educational course requirements) and (s) (domestic violence course requirements) incorporate courses that ss. 456.033 and 456.031 impose on listed professions, and Chapter 480 is not among them. The HIV/AIDS hours massage therapists complete come from the school curriculum (Chapter 8), not from a continuing education requirement. Always check which professions a statute covers before assuming it applies.

18.19 One act, several charges

The overlap between the lists means a single event can be charged several ways. Consider a therapist who, without assessment and without consent, works on a client's groin area after removing the drape, and then tells the client the session "was standard." Depending on the facts, the Board could consider: failure to assess and to obtain specific informed consent (Rule 64B7-23.011(1), (5), (6)); the statutory definition of sexual activity and sexual misconduct (Chapter 16); an unauthorized procedure (s. 456.072(1)(bb)); a deceptive representation (s. 480.046(1)(g)); and violation of the rules generally (s. 480.046(1)(p)). Each charge is a separate count, and fines can be imposed per count (Chapter 19). That is why a single mistake can have large consequences, and why the best protection is the habit of getting each step right.

18.20 Counting the charges

Because one event can support several charges, it helps to see how counts stack up. The example below is fictional and simplified. It is a teaching model, and it does not predict what the Board would decide in any real case.

A therapist is working at a convention booth. She has no written approval from the organizers. A client asks for deep work on the hip, and the therapist, who has no training in the technique, agrees. She does not take a health history. When the client complains of pain afterwards, the therapist tells her it is "normal" and does not record the complaint. Later, when the Department asks for her records, she cannot produce any.

The potential grounds include the following.

Each line is a potential count. The lesson is that small lapses compound. Skipping the assessment, the consent, the explanation and the record is not four small omissions. It is the foundation for four charges.

The reverse is also true. A therapist who does the ordinary steps every time has removed most of the potential counts before a problem occurs.

18.21 Frequently asked questions

Can I be disciplined for something that happened in another state? Yes, in some circumstances. Action taken by another state against a massage license is a ground, and the general statute covers action in any jurisdiction against any regulated profession's license for a violation that would constitute a violation under Florida law.

Do I have to report a traffic ticket? The reporting duty in s. 456.072(1)(x) concerns a conviction, finding of guilt or no-contest plea to a crime. Whether a particular minor offense is a crime in the relevant jurisdiction can be a legal question. If you are unsure, ask the Department in writing.

If my case is dismissed, do I report it? The duty is tied to conviction, finding of guilt or plea of no contest, regardless of adjudication. If you are not sure whether an outcome counts, ask the Department.

Is a complaint the same as discipline? No. A complaint starts a process. Discipline is the outcome, if the Board finds a violation. Chapter 19 describes the stages.

Can the Board discipline me under rules alone? Yes. A valid rule has the force of law, and violating any rule adopted under the chapters is a ground.

What if I disagree with the Board's rule? A therapist who disagrees with a rule may use the processes the law provides for challenging rules. Until a rule is changed or set aside, she must follow it.

Can an owner be disciplined for what an employee did? An owner can face grounds of her own, such as aiding or employing an unlicensed person or failing to keep the establishment clean and sanitary, and an establishment can face license consequences based on the listed records of its owner, manager or any individual providing massage services.

Does a first offense get a warning? That depends on the facts and on the Board's decision. Chapter 19 explains the range of penalties and the factors the Board considers.

18.22 More scenarios to practice

Scenario F: The altered license. An owner learns that a new hire's license copy was altered, and the license number belongs to someone else. The hire says she plans to take the exam next month. What should the owner do?

Discussion. The owner must stop the person from providing massage therapy services at once. Employing or aiding an unlicensed person is a ground for discipline, and the use of another's license is an offense described in Chapter 20. The owner should consider whether to report, keep records and review her verification routine.

Scenario G: The complaint letter. A therapist receives a letter from the Department about a complaint. Angry, she calls the client to ask her to withdraw it. What is the problem?

Discussion. Contacting the complainant to pressure her can be treated as improper interference with an investigation or proceeding. The therapist should stop contacting the client, preserve her records, respond to the Department on time and consider consulting an attorney.

Scenario H: The tired therapist. A therapist working double shifts begins to make mistakes: she forgets to ask about health history, and she once pressed too hard on a client's neck. She says she is fine. What should she do?

Discussion. Her mistakes suggest that fatigue is affecting safe practice. She should reduce her schedule, take rest, and review her routine. If the problem continues or is linked to a condition, she should seek help, and an impaired practitioner program is available to those who seek it. A therapist who keeps working while unfit risks both her clients and her license.

Scenario I: The pressured package. A therapist tells a new client that she needs a 12-session package to "fix" her back, and says the offer ends today. The client has only mild stiffness. What are the concerns?

Discussion. Pressure to buy services the client does not need, for the therapist's financial gain, is a ground for discipline. Claims that the package will "fix" a condition may also be deceptive. The therapist should recommend a plan based on the client's goals and findings, explain it honestly and allow the client time to decide.

Scenario J: The missing report. A therapist knows that a colleague is regularly working with clients while smelling of alcohol, and has seen her make unsafe errors. She says nothing because they are friends. Is that a problem?

Discussion. A licensee who knows another person is in violation, and fails to report, commits a violation herself, subject to the exception that allows a report about impairment to be made to an impaired practitioner consultant. She should speak to the manager or report through the proper channel, because clients are at risk.

Chapter summary

A massage therapist can be disciplined under two cumulative lists of grounds: section 480.046(1), specific to massage therapy, and section 456.072(1), which applies to all health care practitioners. The Board may charge under either or both, and proceedings are conducted under Chapter 120.

Most grounds restate duties taught in earlier chapters: scope and competence, premises, advertising, sexual misconduct, sanitation, continuing education, address changes and records. New grounds in this chapter concern fraud in obtaining a license, including through an error of the Department; discipline in another jurisdiction, including a relinquishment offered in anticipation of charges; crimes, with a duty to report any conviction, finding of guilt or no-contest plea in writing within 30 days; aiding or employing an unlicensed person; deceptive or fraudulent representations and financial influence over clients; impairment; malpractice; defiance of orders, subpoenas and inspections; interference with investigations; failure to report a violator; and violating the chapters or rules.

The standard of care is the level of care, skill and treatment recognized by a reasonably prudent massage therapist as acceptable under similar conditions and circumstances. Rule 64B7-23.011 lists twelve examples of misconduct and negligence, and eleven are failures of process. A single event can support several counts, so the best protection is getting each routine step right every time.

Good practice includes an annual self-audit, a significant-events file, calendared reporting deadlines, a license verification routine, attention to fitness for work, and calm, truthful, prompt responses to the Department.