Licensed Massage Therapists (LMT) who hold a Medical Establishment license and serve as their own Designated Establishment Manager must be apprised of the employment and patient recordkeeping requirements outlined in Florida House Bill 197 which became effective on July 1, 2024. Florida House Bill 197 broadens the definition of “Designated Establishment Manager”, “Employee” and “sexual activity”. The broadened language has a critical impact on offices which rent office space to massage therapists who are required to have a Medical Establishment license. A “Designated Establishment Manager” is now defined as a licensed massage therapist or health care practitioner who is responsible for the operation of a massage establishment. Additionally, the broadened definition of an “employee” includes independent contractors or lessees working within the massage establishment whose duties involve any aspect or capacity of the massage establishment including, but not limited to, preparing meals and cleaning regardless of whether such person is compensated for the performance of such duties. The broadened language is accompanied by ambiguity as it is not entirely clear what is considered to “involve any aspect or capacity of the massage establishment”, or “any aspect or capacity of the massage establishment including, but not limited to, preparing meals and cleaning regardless of whether such person is compensated for the performance of such duties” which leaves medical establishment owners in a state of unease for potential noncompliance despite good faith efforts to adhere to the broadened language. Further, the interpretation of the meaning is then left to the judiciary to employ rules of statutory construction to resolve these ambiguities.
Although certain definitions have been broadened, the patient and employee recordkeeping requirements which employers are responsible for are quite detailed. Employment records must include the employee’s start date, full legal name, date of birth, address, phone number, position, and a copy of their ID. These details must be recorded before the employee can provide any service or treatment. Similarly, patient records must include the date, time, type of service, the employee’s full legal name, and the client’s/patient’s full legal name, address, and phone number. These records must be maintained for at least one year after the service. If an LMT’s duties serve a non-LMT practice, they are considered an employee, requiring the non-LMT practice to comply with these recordkeeping mandates.
In light of the broad and ambiguous language provided in the bill, non-LMT’s can protect themselves by taking precautionary measures by maintaining independence through a sublease and clear delineation of duties with the LMT who shares the office space. As such, a clear separation of respective duties might lower the regulatory risk that the non-LMT is not considered an “employee”, and the recordkeeping requirements therefore do not apply to the non-LMT subletter. It is at a minimum critical for LMT’s to maintain separate business operations and ensure clear sublease agreements and disclaimers to delineate independence from sublessees so as to not incur liability for a sublessee who is not an employee. This separation lowers the regulatory risk that the non-LMT premises owner or subletter would be considered by regulatory authorities subject to the employment and patient recordkeeping requirements. Non-LMT owners and leasers must understand when these requirements apply and maintain proper documentation to demonstrate the LMT’s independence.
If you have any questions pertaining to how this bill may impact your specific Medical Establishment, it is important to consult with an experienced healthcare attorney to understand how to best proceed to maintain compliance.
Article By: Rachel E. Broughton | Attorney, Florida Healthcare Law Firm
