As Published on Yoga Therapy Link Spring 2020
Since before I started as a Yoga Teacher in 2001, the relationship between Yoga, as alternative and complementary health care service, and New York State law has been, and still is, unstated and ambiguous. As a professional, this is a source of stress requiring hyper-vigilance and sensitivity around the unknowns and the possibility of breaking the law. Below you’ll find a free downloadable guide to help you.
In 2005, I became co-owner of an incorporated studio/spa, with a small 200-hr Yoga Teacher Training (YTT) program. It was about 2008 when New York State began an audit of businesses in the health & beauty industry. Issues of employment, independent contracting, worker’s compensation, and unemployment insurance manifested in devastating fines for studios like mine. On top of that, owners/operators of YTT programs received letters promising up to $50,000 in fines for failure to license as vocational school citing state education law. My business was overcome by fines and instability. By the end of 2010, we shut down.
In March of 2010, however, New York State passed an amendment to section 5001 of state education law, which provided licensing exemptions for YTT programs yet qualified them as courses “for the purposes of leisure, hobby, or personal enrichment.”
I became disenchanted with the identity assigned and readily embodied by the Yoga—as fitness and fashion—Industry. In 2013, I became certified in Phoenix Rising Yoga Therapy and began calling myself Yoga Therapist. But new issues rose to the surface in the emerging field of Yoga Therapy.
Leaders in the field had collaborated to form The International Association of Yoga Therapists (IAYT), bringing standards, accreditation, and certification to Yoga Therapy. These leaders urge vigilance and caution around the possibility of practicing medicine without a license and the use of touch with clients. Gaining greater clarity and understanding of the legalities and ethics of these two issues supports me in private practice and as an educator.
The practice of Yoga is known, anecdotally, to benefit physical health, stamina, longevity, mental clarity, acuity, emotional well-being, and also, spiritual enlightenment. Indian texts, dating as far back as 600 BCE, record knowledge that Yoga practice improves and enhances the human physical, emotional, and mental condition. In contemporary times, objective research on Yoga’s impact to human health and wellness has shown that Yoga contributes to quantifiable improvements in physical and mental health. Globally, people turn to Yoga as an alternative or complement to their health care regimens. Clients seek out Yoga Therapy to address structural concerns like scoliosis and sciatic nerve pain, and physiological issues like asthma, obesity, menopause, autoimmune diseases, etc. Clients also seek out Yoga Therapy to address mental and emotional issues, like bereavement, PTS(D), depression, anxiety, addiction recovery and more. Often medical and mental health professionals refer their patients to Yoga classes or Yoga Therapists.
Yoga Therapy could, debatably, exist at the edge of practicing medicine, mental health counseling or physical therapy without a license. NYS Education Law, Article 131, §6521 states, “The practice . . . of medicine is defined as diagnosing, treating, operating or prescribing for any human disease, pain, injury, deformity or physical condition.” Article 163 §8402 defines mental health counseling as “the evaluation, assessment, amelioration, treatment, modification, or adjustment to a disability, problem, or disorder of behavior, character, development, emotion, personality or relationships by the use of verbal or behavioral methods with individuals, couples, families or groups . . . .” And Article 136 § 6731 describes that a physical therapist works to restore, maintain, and improve a person’s movement and function.
Yoga Therapists do engage specific Yogic lenses for assessment, apply relevant practices and techniques, and recommend Yogic lifestyle changes in response to clients’ physical, emotional and mental concerns. This could imply that Yoga Therapy involves diagnosis, treatment and prescriptive remedies. At first glance, and on the surface, it may seem like Yoga Therapy may breach into some of the above definitions, and may be vulnerable to law enforcement and litigation.
This concern is not unique to Yoga Therapy. Organizations like National Health Freedom Action have petitioned states for decades, lobbying for legislation to protect alternative and complementary health care providers from being “unfairly charged” with practicing medicine without a license. These laws, known as Safe Harbor Exemption Laws, have been passed in 10 states. Most recently, in June of 2019, Maine passed the Right To Practice Complementary and Alternative Health Care Act, in which alternative and complementary health care providers are free to practice, as long as they do not do surgery, or take x-rays or interfere with prescriptions, etc. and do provide appropriate disclosures, waivers and consent forms. New York State brought Safe Harbor Exemption legislation to action in 2008 but it did not pass. In 2015-2016, another bill appeared to group complementary and alternative medicine into regulations regarding Dietetics, and it was opposed. The issue has not come up again for action nor has Yoga Therapy been litigated in New York State.
In the best interest of professionalizing the field of Yoga Therapy and providing safety for Yoga Therapists and clients, IAYT published a Scope of Practice and a Code of Ethics and Professional Responsibility in 2016. The Scope and Code were created to provide a clear professional paradigm that could support Yoga Therapists pioneering the field. That same year, Yoga Alliance, a well-known registry for YTT programs and Yoga teachers, distanced themselves from Yoga Therapy. Based on a consultation with Law 360 to assess ”the Legal Risk of Unregulated Yoga Therapy,” Yoga Alliance enforced new policies banning the use of words like therapy and healing on profiles and websites of registered users. Yoga Alliance required Yoga Therapists like myself to post a disclaimer reading “the yoga therapy components are not derived from her status as an RYT® with Yoga Alliance Registry.”
Ethically, my marketing speaks to creating strength, stamina, vitality and sense of self. I don’t offer to fix conditions, but I do say that I will accept people with them. I honor the scope of practice as established by IAYT, and — while I am not breaking any law in NYS — professionally, I am vulnerable.
There are no laws that prohibit one person from touching another person in a professional setting in New York State. There are laws that regulate touch in fields like massage therapy, and penal codes that outlaw certain types of violent, abusive or non-consensual touch. It is a felony to practice massage therapy without a license. It is a misdemeanor to assault and cause injury, or to forcibly touch someone. I am not breaking the law when I touch my clients; but without care and ethics, I could.
Yoga Therapy is not massage therapy, where therapists are required to have a “license to touch.” NYS Education Law Article 155, defines massage as skin and muscle manipulation techniques, like stroking and kneading. In the course of a Yoga Therapy session, a therapist may use touch and body contact to assist and support clients with postural alignment, stability, endurance, balance, and focused mental awareness. Touch may be used on the extremities, limbs, shoulders, hips, ribs, belly, back, neck and head. A therapist may engage in partner-style yoga postures with clients, increasing touch and contact, e.g. sitting back-to-back. Touch in Yoga Therapy is distinct from massage therapy in its use, application and outcome, though the distinction may not be obvious to the inexperienced client.
Should an assisted or supported yoga posture require hand placement on hip, shoulder or any other area of the body, and Yoga Therapist behaves or speaks in a sexually suggestive way, the penal code will apply. Healthcare providers using inappropriate touch face Article 130, which prohibits forcible touching. This criminal charge occurs when a person “intentionally, and for no legitimate purpose, forcibly touches the sexual or other intimate parts of another person for the purpose of degrading or abusing such person, or for the purpose of gratifying the actor's sexual desire.” The code states that “forcible touching includes squeezing, grabbing or pinching.” Should an assisted or supported yoga posture lead to an injury, penal code could apply. Article 120 says a person “is guilty of assault in the third degree when . . . they recklessly cause physical injury to another person.”
Touch in Yoga Therapy is informed primarily by the Ethics of Yoga. These ethics are non-harm, honesty, non-stealing, restraining sexual energy and non-coveting. In more recent years, the Yoga Ethic has become even more refined by growing discernment around risk management, trauma-sensitivity, gender/race power dynamics and informed consent. The Yoga Therapist is trained to be carefully aware of their position of power and the possibility of re-triggering an injury or traumatic response. This possibility requires that a Yoga Therapist educate clients while inviting the client to accept or reject touch each time it is initiated. Yoga Therapists are trained to empower clients with choice by describing what they will do and waiting for the client’s agreement. This “law-in-mind” emphasizing consent has developed from the influence of psychotherapists and medical professionals who bridge into the field of Yoga Therapy, and from the shame of past guru abuses.
Without an urgent cause for scrutiny, Yoga Therapy dwells below the radar of New York State regulations. This gave the field of Yoga Therapy a chance to self-regulate as it formed and professionalized. IAYT prioritized the diversity of Yoga Therapy traditions while identifying consistent standards and criteria for professional practice. IAYT established the definition of Yoga Therapy in 2008, standards and accreditation for Yoga Therapy Training programs in 2012, and certification for qualified Yoga Therapists in 2016. Right now, IAYT is developing a certification exam in consultation with Kryterion Global Testing Solutions.
These are the necessary steps for professionalization of an emerging field. For the Yoga Therapist to offer Yoga Therapy services, written waivers and consent forms are helpful and legislation creates the most protection. The ideal would be for New York to pass legislation like Maine’s Right to Practice CAM law. In time the question will be whether New York and other states accept the self-regulating footprint established by IAYT or enact legislation regarding Yoga Therapy by another standard (and/or create its own exam). Until then the most legally defensible and ethical thing to do is become certified by IAYT and practice according to its Scope of Practice and Professional Ethics.