St. Paul, MN -- The Minnesota Department of Health reversed course and decided to rescind its January 14th order for discipline against massage therapist LaRae Lundeen Fjellman. Mrs. Fjellman was disciplined for entering into a personal relationship and marrying a former client within two years of ending their professional relationship. Among other things, the Department had initially ordered Mrs. Fjellman not to have sex with any "former client" and to pay a civil penalty. The decision to rescind discipline against Mrs. Fjellman was based on a last-minute conclusion that the facts of the case, "clearly do not constitute the egregious mischief or exploitation that the legislature sought to protect the public from when it enacted Chapter 146A," and that Mrs. Fjellman does not pose "any future threat to the public". The revised order was filed just days before the ACLU-MN was set to file an appeal to the discipline. "While we are glad that the Department of Health now recognizes that discipline was inappropriate; it is deplorable that it took this long," said ACLU-MN Executive Director Charles Samuelson. "They reached this conclusion only after wasting state resources on an outrageous three-year inquisition that has shattered Mr. and Mrs. Fjellman both emotionally and financially."
The ACLU-MN agreed to represent Mrs. Fjellman in her appeal from the order for discipline because the rule infringes on the constitutional right to intimate association and the right to marry. The rule also violates the right to equal protection because it holds alternative healthcare providers to a more rigorous standard than other healthcare providers. Although the discipline was rescinded in this case, the ACLU-MN is evaluating its options for challenging the constitutionality of the law in order to obtain some measure of justice for LaRae, and to prevent other alternative healthcare providers from being subject to similar outrageous charges.
LaRae has been a massage therapist for 18 years. In October 2000, Kirk Fjellman became her client. As residents of a small town, Kirk and LaRae had known each other since the late 1990's. He remained a client until April 2002. In August 2002, they began dating and fell in love. They got engaged in March 2003 and were married in September 2003. They're an ordinary middle-aged couple living an ordinary life. Kirk recently overcame a second scare of cancer after an initial bout twenty- three years ago.
While a license is not necessary to practice massage therapy in Minnesota, the entire alternative health care industry is subject to regulation by statute. This includes 22 types of alternative methods and treatments, covering all modalities of massage therapy, herbalism, aromatherapy and similar work. In April 2004, the Minnesota Department of Health notified Mrs. Fjellman about a complaint against her, filed by her husband's ex-wife, stating that LaRae violated the portion of the statute prohibiting alternative health care providers from having sex with former clients within two years of ending the client relationship. She had no idea this statute existed. LaRae belongs to a professional organization and its ethics rules only prohibit sex with current clients.
The complaint against Mrs. Fjellman set off a three-year ordeal in which Department of Health officials subjected her to an intrusive interrogation and required her to undergo a psychological examination with a state appointed psychologist, at her own expense. Despite the fact that the psychologist concluded that she's a normal and ethical person, the Department continued to pursue disciplinary charges against her, issuing numerous orders and stipulations articulating fines and punishment regarding her ability to practice her craft. The Department entered a final order for discipline on January 14th. The order rescinding the discipline was issued on February 9th.
Even though the order was rescinded, the state's action has had a tremendous emotional impact on the Fjellmans. In addition to living with the fear of retribution, the stress of the legal battle has alienated family, friends, clients, colleagues and community members. Fearing that that the discipline might end her eighteen-year career in massage therapy in Minnesota, the Fjellmans incurred significant debt in order to relocate her practice to Wisconsin. The Fjellmans also incurred significant legal fees in order to defend LaRae against the charges.
The ACLU-MN believes that the statute violates the constitutional right to engage in intimate associations. In Lawrence v. Texas, the U.S. Supreme Court re-affirmed the notion that adults have a due process liberty interest in "deciding how to conduct their private lives in matters pertaining to sex", 539 U.S. 558, at 572. A governmental deprivation of this fundamental right is only permissible if it serves a compelling government interest. Although the Lawrence court recognized that the government has a stronger interest in intimate associations involving "persons who might be injured or coerced or who are situated in relationships where consent might not easily be refused", the Minnesota law at issue goes too far by imposing a two-year ban on consensual relationships between alternative health care practitioners and their former clients. The law does not impose the same two-year ban on physicians, physician assistants, physical therapists, acupuncture practitioners, or midwives. It is unclear what compelling state interest justifies holding alternative healthcare practitioners to a much higher standard than applies to these other healthcare professionals.
"We believe that this law goes too far in regulating the personal lives of alternative healthcare professionals," said ACLU-MN Legal Counsel Teresa Nelson. "The law unnecessarily extends two years after the client relationship has ended. Our hope is to prevent this from happening again."
The ACLU-MN volunteer attorneys in this matter are Robin Wolpert and Mark Johnson from the law firm of Greene Espel in Minneapolis.