Changes pushed for massage therapy - Sioux Falls Argus Leader

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An empty massage room is shown in the spa area of Envive Chiropractic. Some massage therapists want to see greater oversight of the industry.(Photo: Joe Ahlquist / Argus Leader)Buy Photo


Legislators took the questions of the state’s massage therapists to the Board of Massage Therapy’s director Friday.

Therapists in Sioux Falls have raised concerns about the ability of the board to enforce laws on licensure, with some questioning the group’s ability to protect the public from unlicensed therapists and wondering aloud if the state can offer the profession the legitimacy promised by the board’s creation in 2005.

Erotic massage parlors are operating under the radar, therapists have said, and Sen. Phyllis Heineman has heard the questions.

“I’ve received a variety of concerns from massage therapists who really believed that once they were licensed, they’d give their profession some safeguards,” Heineman told Board Director Jennifer Stalley Friday in Pierre. “But they’re concerned that now their complaints aren’t being taken care of.”

What Heineman and the rest of the Government Operations and Audit Committee heard was that the board’s current powers don’t offer much in the way of protection.

“Right now, we can’t even inspect the place where the unlicensed practice is happening,” Stalley told the committee.

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Massage therapists: We need enforcement


A proposal is in the works to expand the board’s authority, but more enforcement actions could require more funding than the group has had available. Stalley’s contract is up for renewal soon, and the board will need to decide what the job will look like and how much it’s worth.

“The board’s going to have to determine ‘how much do you want,’” Stalley said.

Court case, legislative action limit response

The board’s history includes a fierce debate over the need for state-level licensure in 2005, complaints about responsiveness to therapists in the years afterward, and an attempt to shut down the board entirely in 2013 by Rep. Charlie Hoffman of Eureka.

The bill had the support of Gov. Dennis Daugaard, who still believes massage therapy doesn't need to be licensed at the state level.

The bill eventually was hoghoused and replaced with one that kept the board but stripped it of the ability to inspect locations without a formal complaint.

Pierre lawyer Jim Carlon said last week that the board he represents can no longer act on informal bits of information. The board can offer the informant an opportunity to make a complaint, but “many times they do not want to or do not feel they have sufficient personal knowledge to file a formal complaint.”

The “inspection upon complaint” model is problematic, Carlon said, because the board is required to send a notice of the complaint to the business and wait 20 days for its response before inspecting.

That wasn’t the case before 2013.

In May of 2011, after informal complaints from the public, board member Laura Woitte and board secretary Joyce Vos visited Ying’s Massage in The Empire Mall and saw two women and Asian man at work, according to a settlement agreement filed in Pierre. The man was unable to tell them which of the licenses on the wall was his. The owner, Yuying Shan, was called, and she said she had close up the business.

A half-hour later, Woitte and Vos came back to find the business was still open. Two days later, the business was still open. The board got an email listing all of the employees but found that two of the employees were never licensed and that six others had expired licenses.

In June of that year, Vos returned to Ying’s Massage. Two male employees fled upon seeing her. Shan lost her license later that year.

In addition to inspections, the board also would send “cease and desist” letters to businesses it learned were practicing without a license, Carlon said.

In March, however, the U.S. Supreme Court issued a ruling in the case of North Carolina Board of Dental Examiners vs. FTC that called into question an appointed board’s ability to order such action. In that case, the North Carolina board, made up mostly of working dentists, sent dozens of cease-and-desist letters to tooth-whitening businesses. The Supreme Court determined that a state board without state government oversight could be held liable in an antitrust action for taking such steps.

After that ruling, on Carlon’s recommendation, the massage board in South Dakota voted to stop sending cease-and-desist letters and to simply pass complaints along to local law enforcement.

“The ultimate impact on the board’s authority or ability to send cease-and-desist letters isn’t clear – yet,” Carlon said. “Until it is clear, we will have to be cautious and not potentially violate the antitrust laws.”

Stalley said the board does pass along information to local law enforcement, who have the option of following up with enforcement and prosecution of those who practice without a license – a crime punishable by up to a year in jail. So far this year, she said, there were eight formal complaints, and all eight have been marked “resolved.”

“At the end of the day, the board doesn’t have law enforcement powers,” Stalley said. “We don’t have handcuffs. We can’t go out and put people in jail.”

Future of the board in question

Stalley repeated that phrase to the legislators on Friday, but also talked about the 2013 bill’s impact on the board’s budget. It changed license renewal process to make all renewals due on Sept. 30 of each year. Prior to that, the expiration date was different for every therapist, and too many people were missing it.

In order to make that change – a positive one, Stalley said – the board reset the clock and went without renewal fees for a year. The fees it began collecting later on were smaller - $45, down from $65. Just over 800 licenses are renewed every year, and the price cut has given the board $6,000 less to work with for the past two fiscal years, Stalley said.

The board took another positive but expensive step just after the bill passed, as well. It paid a consultant $34,000 to revamp its website, making current licensees searchable and making it possible for web users to cross-reference expired or pulled licensees with current therapists, Stalley said.

The board has some decisions to make about how it will proceed, Heineman said Friday. If the current structure doesn’t allow it to do the job and the finances don’t match up, she said, “I’m not sure where your board goes from here.”

The board has worked on an amendment to the state’s massage therapy law that would return the ability to inspect without a formal complaint, and the proposal is posted online for potential stakeholders to review before the legislative session.

It’s unclear how much support a bill would have in the Legislature, however. The 2013 session’s attempt to remove licensing as a requirement had the backing of Daugaard, and Chief of Staff Tony Venhuizen said last week the governor still feels that the practice needn’t be handled at the state level.

“If there is evidence of prostitution, our position is that is a matter for law enforcement, not for the licensure board,” Venhuizen said.

The governor hasn’t taken a position on the proposed changes, Venhuizen said, but he “will carefully consider them.”

John Hult is the Reader's Watchdog reporter for Argus Leader Media. Contact him with questions and concerns at 605-331-2301, 605-370-8617. You can tweet him@ArgusJHultor find him on Facebook at www.Facebook.com/ArgusReadersWatchdog

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