NCBTMB Exam Business and Legal Practices 6

Question 1

A massage therapist discovers that a former client, now deceased, had listed the therapist as a beneficiary in their estate. The therapist had provided pro bono services during the client's terminal illness. Which ethical and legal consideration is MOST applicable?

Accepted Answer

The therapist must decline the inheritance to avoid the appearance of undue influence over a vulnerable client

Answer

Accepting a bequest from a deceased vulnerable client raises serious concerns about undue influence, a recognized form of boundary violation. Even posthumously, benefiting financially from a therapeutic relationship with a terminally ill client—regardless of pro bono status—suggests potential exploitation of transference or dependency. Most professional ethics frameworks, including those aligned with NCBTMB standards, counsel refusal or at minimum require extraordinary scrutiny to demonstrate the absence of improper influence during the therapeutic relationship.

Question 2

A licensed massage therapist operates as a sole proprietor and is served with a civil lawsuit alleging injury to a client. The therapist's professional liability policy has a $1 million per-occurrence limit but contains a 'consent to settle' clause. The insurer wishes to settle for $400,000 without admitting fault, but the therapist refuses. What is the MOST likely consequence of the therapist's refusal?

Accepted Answer

The insurer must honor the therapist's refusal and proceed to trial, but may invoke a 'hammer clause' making the therapist financially responsible for any judgment exceeding the settlement offer

Answer

A 'consent to settle' clause gives the insured the right to refuse settlement, but many such policies also contain a 'hammer clause' (or 'consent to settle' penalty provision). This clause limits the insurer's liability to the amount of the refused settlement plus defense costs up to that point—meaning if the case proceeds to trial and results in a larger judgment, the therapist bears personal financial responsibility for the excess. This is a critical nuance that distinguishes standard policies from those with hammer clauses.

Question 3

A massage therapist who is also a certified nurse's aide receives a subpoena for client records in a personal injury lawsuit where the client is the plaintiff. The therapist provided both nursing aide services and massage therapy to the same individual. Which standard governs disclosure of the massage therapy session notes?

Accepted Answer

Massage therapy session notes are governed by state massage therapy confidentiality statutes and require a separate court order or valid authorization, independent of any healthcare privilege applicable to nursing records

Answer

Dual-credentialed practitioners must maintain distinct confidentiality obligations for each professional role. Massage therapy records are subject to state massage therapy practice act confidentiality provisions, which are separate from nursing confidentiality rules. A subpoena alone—without a valid client authorization or court order specifically addressing the massage records—does not automatically authorize disclosure. The therapist must assert the applicable privilege and seek guidance from an attorney before releasing massage-specific records, even when nursing records may be separately producible.

Question 4

A massage therapy practice employs three therapists as W-2 employees and one as a 1099 independent contractor. The IRS audits the practice and reclassifies the independent contractor as an employee. Which tax liability falls PRIMARILY on the practice owner as the employer of record?

Accepted Answer

Retroactive employer-share FICA taxes, plus potential penalties and interest, for all pay periods during which the worker was misclassified

Answer

When the IRS reclassifies a worker from independent contractor to employee, the employer becomes liable for the employer's share of FICA taxes (Social Security and Medicare) for the entire misclassification period, plus applicable penalties and interest. Under IRS Section 3509, reduced rates may apply if the misclassification was not intentional, but the employer remains primarily responsible for the employer-side payroll taxes. The worker may receive credit for self-employment taxes already paid, but the practice absorbs the employer-share obligations plus administrative penalties.

Question 5

A massage therapist in a group practice signs a non-compete agreement prohibiting them from practicing massage therapy within 25 miles of the clinic for 3 years after leaving. Six months after resigning, the therapist opens a solo practice 10 miles away. The former employer seeks an injunction. Which legal doctrine is MOST likely to limit enforceability of this non-compete?

Accepted Answer

The 'blue pencil' doctrine, allowing a court to modify the agreement to a reasonable scope rather than void it entirely, potentially reducing the geographic or temporal restriction

Answer

The 'blue pencil' doctrine allows courts in many jurisdictions to narrow overbroad non-compete agreements rather than invalidating them wholesale. A 25-mile, 3-year restriction may be deemed unreasonable in scope, but instead of voiding the agreement entirely, a court may reform it to a smaller radius or shorter term and grant partial injunctive relief. This is especially relevant in service industries like massage therapy, where courts balance the employer's legitimate business interests against the practitioner's right to earn a livelihood. The 'learned profession exemption' exists in some states but is not categorical across all healthcare fields.

NCBTMB Exam Practice Test

NCBTMB Exam Practice Test

NCBTMB Exam Business and Legal Practices 6