The Health Law Firm Attorneys Often Represent Massage Therapists in Last Minute Depositions and Hearings

Headshot of attorney George IndestBy George F. Indest III, J.D., M.P.A., LL.M., Board Certified by The Florida Bar in Health Law

Our attorneys often receive calls from massage therapists regarding the possibility of representing them on short notice at a Board of Massage Therapy hearing, or at a deposition related to a health care matter.

We Take Last Minute Cases.

There are some law firms that refuse to represent a client at a hearing unless given plenty of advance notice and preparation time. We always prefer to have sufficient time to obtain documents, review files, interview witnesses, conduct research and prepare, in order to provide our clients the best possible representation. But we realize that in certain cases, the alternative is that the client either gets legal representation on little or no advance notice, or has to suffer the consequences of having no legal representation.

If we think the case is too complex for us to represent you effectively on such short notice or that any legal representation would be completely futile we may also refuse to represent a client. However, often this is not the situation.

Administrative Proceedings Can Be Confusing, Even For Inexperienced Attorneys.

In some cases individuals responding to a disciplinary complaint may be fooled into believing that they can effectively represent themselves. Laypersons (meaning, in this case, nonlawyers) who are not aware of such complex matters as the Administrative Procedure Act, the Rules of Civil Procedure, the Rules of Evidence, the Florida Administrative Code (F.A.C.) Rules which the Board of Massage Therapy and the Department of Health (DOH) have enacted may quickly be perplexed. Often the individual may only figure this out days or weeks before the final hearing.

The inexperienced individual, or even the inexperienced attorney, in these matters can fall into a number of procedural traps that damage an effective defense. This can be advising the individual to talk to the DOH investigator, filing an unnecessary answer to an Administrative Complaint, forgetting or not knowing that the client’s right to be free of self-incrimination applies in this type of case and many others.

Don’t Damage Your Defense.

Often you will find that merely having an experienced attorney to represent you at a hearing or Board meeting will assist you in avoiding mistakes that damage your case and assist you in preserving your rights for an appeal. In other cases it may even be possible to obtain a change in forum to obtain a better result. For example, many laypersons do not know that if you elect an informal hearing before the Board of Massage Therapy, you have waived your right to prove you are innocent by contesting the facts alleged against you.

What few know or think of in the heat of the moment is that you can ask at the informal hearing before the Board of Massage Therapy to contest the facts, to prove you are not guilty of the charges, and to have the hearing converted to a formal hearing. A formal hearing will be in front of a neutral Administrative Law Judge (ALJ), and you have a great many more procedural rights than you have at an informal hearing. However, we still recommend that you have an experienced health lawyer represent you at a formal hearing.

The Health Law Firm is Available for Deposition Coverage.

In a number of cases, we have been requested to provide local deposition coverage in an area near to one of our offices, when an out-of-town lead counsel is unable to make the trip. If the issues involve health care, we are pleased to be able to assist.

Often Professional Liability Insurance Will Pay Legal Fees for Deposition Coverage.

If you are a massage therapist who has a professional liability insurance policy, these often provide legal coverage for depositions. This is primarily because the outcome of the deposition may include having you named as a defendant in a professional liability or negligence lawsuit or having disciplinary charges filed against you.

One of the first things you should do if you receive a subpoena or a notice of a deposition is to contact your professional liability insurance carrier and see if it will pay for an attorney to represent you. For example, Healthcare Providers Service Organization (HPSO), CPH & Associates, Lloyds of London and many other malpractice insurance companies provide excellent deposition coverage.

The second thing you should do is to call an experienced attorney and schedule a consultation. Even if you cannot afford to retain the services of the attorney for the actual deposition, a consultation may assist you in properly preparing.

Consult With A Health Law Attorney Experienced in the Representation of Massage Therapists.

We routinely provide deposition coverage to massage therapists, massage therapy assistants and other health professionals being deposed in criminal cases, negligence cases, civil cases or disciplinary cases involving other health professionals.

The lawyers of The Health Law Firm are experienced in both formal and informal administrative hearings and in representing health professionals in investigations and at Board of Massage Therapy hearings. Call now or visit our website www.TheHealthLawFirm.com.

Comments?

Have you ever had an informal or formal hearing before the Board of Massage Thearpy? What was the experience like? Please leave any thoughtful comments below.

About the Author: George F. Indest III, J.D., M.P.A., LL.M., is Board Certified by The Florida Bar in Health Law. He is the President and Managing Partner of The Health Law Firm, which has a national practice. Its main office is in the Orlando, Florida, area. www.TheHealthLawFirm.com The Health Law Firm, 1101 Douglas Ave., Altamonte Springs, FL 32714, Phone: (407) 331-6620.

“The Health Law Firm” is a registered fictitious business name of George F. Indest III, P.A. – The Health Law Firm, a Florida professional service corporation, since 1999. 

Copyright © 1996-2012 The Health Law Firm. All rights reserved.

How to Prepare for an Informal Hearing Before the Florida Board of Massage Therapy

By George F. Indest III, J.D., M.P.A., LL.M. Board Certified by The Florida Bar in Health Law

If you are scheduled to appear for an informal hearing before the Florida Board of Massage Therapy, there are a number of facts that you will want to know in order to be properly prepared. This article will cover many of them.

Limited Circumstances for Informal Administrative Hearing

First, you should understand that you will only be at an informal hearing in which you appear before the Board of Massage Therapy itself for a very limited number of reasons. These will include the following:

1. If you completed an election of rights (EOR) form and agreed that you did not intend to dispute any material facts alleged against you from the administrative complaint (AC) in the case.

2. If you entered into a settlement agreement (or “stipulation”) (similar to a plea bargain in a criminal case) in which you agreed to accept discipline against your license.

3. You failed to submit any election of rights (EOR) form and failed to file a petition for a formal hearing in a timely manner, and, therefore, you have waived your right to a formal hearing.

There are a few other circumstances in which there may be an informal hearing before the Board, such as motions to modify a final order, motion to lift a suspension of a license, appearance in accordance with an earlier order, petition for a declaratory statement, or other administrative matters. This article only discusses those directly relating to disciplinary action as indicated above.

What an Informal Administrative Hearing Is Not

1. An informal administrative hearing is not an opportunity for you to tell your side of the story. You have agreed that there are no disputed material facts in the case or you would not be at an informal hearing.

2. An informal administrative hearing is not an opportunity for you to prove that you are innocent of the charges. You have agreed that there are no disputed material facts in the case or you would not be at an informal hearing.

3. An informal administrative hearing is not an opportunity for you to introduce documents or evidence to show that someone else committed the offenses charged and you did not. You have agreed that there are no disputed material facts in the case or you would not be at an informal hearing.

4. An informal administrative hearing is not an opportunity for you to argue that you should not be in the board’s impaired practitioners program (either the Professionals Resource Network (PRN) or the intervention Project for Nurses (IPN)) because you have completed a different program or that you do not have a problem. These are the only programs recognized and used and you have agreed that there are no disputed material facts in the case or you would not be at an informal hearing.

Formal Administrative Hearing vs. Informal Hearing

If you desire to contest the facts alleged against you then you must state this in writing. If the material facts in a case are challenged by you, then the Board or the Department of Health (DOH) (note: all professional boards are under the Department of Health in Florida) must forward your case to the Division of Administrative Hearings (DOAH) where a neutral, objective administrative law judge (ALJ) will be appointed to hold a formal hearing in your case. This is the only way that exists for you to prove that the facts alleged against you are incorrect or that you are not guilty of the charges made against you. In fact, you do not even have to do anything in such a case. The Department of Health has the burden of proof and it has to prove the charges against you and the material facts alleged against you by clear and convincing evidence. Often, it is unable to do this at a formal administrative hearing.

However, because of the technicalities of evidentiary law and administrative law, we do not recommend that a nonlawyer attempt to represent himself or herself at such hearings. You can make technical mistakes (such as answering requests for admissions incorrectly) that severely compromise any defense you may have. We recommend that you always retain the services of an experienced health lawyer in any such matter.

What to Do If You Find That You Are at an Informal Hearing and That You Do Desire to Contest the Material Facts of the Case (And Your Guilt or Innocence)

If you have been scheduled for an informal administrative hearing and you decide that you do desire to challenge the material facts alleged against you in the administrative complaint (AC), file a written objection to proceeding at the informal hearing. State that you have discovered that there are material facts that you do desire to challenge and that you desire that the proceedings be converted to a formal hearing. File this with the Clerk of the administrative agency you are before (usually the department of health or the Agency for Health Care Administration (AHCA) and also send a copy to the opposing attorney and the executive director of the Board. Do this as early as possible and keep proof that you have actually and filed the written request.

If you are already at the informal hearing when you discover this, object to the proceedings on the record and ask to have the informal hearing be converted to a formal hearing where you may contest the material facts. State this as many times as reasonably possible.

Preparing for an Informal Hearing

Since you are not contesting the facts alleged against you, if you are going to an informal hearing be sure you do the following:

1. Be sure you know where the hearing is going to be held. Try to stay the night before in the same hotel as the hearing will be held. You will usually have to make these reservations early in order to get a room.

2. Attend a Board meeting that occurs before the one at which your case is scheduled. This will give you a feeling for the procedures that will be followed, will help to make you less nervous when you appear, and you can obtain continuing education units for doing so (be sure to sign in and sign out). Be sure to attend one of the days when the disciplinary hearings are held.

3. Dress professionally for the appearance. This may be the most important event in your professional career. For men, this means a suit and tie or, at least, a dark coat, dark slacks and a necktie. For women, a professional business suit or the equivalent is in order. Do not dress as if you are going to the park, the beach or out on a date. Do not wear sexually provocative or revealing clothing.

4. Check the agenda that is published on-line a day or two before the scheduled hearing to make sure that your case is still scheduled for the date and time on the hearing notice. Informal hearings may be moved around on the schedule. Make sure you are there at the earliest time on the hearing notice or agenda.

5. Listen to questions asked of you by Board members and attempt to answer them directly and succinctly. You will be placed under oath for the proceeding and there will be a court reporter present as well as audio recording devices to take everything down.

6. Do not argue with the Board members or lose your temper. This is not the time or place to let this happen. If you have such tendencies, then you should have an attorney there with you who can intercept some of the questions and can make defensive arguments (to the extent that they may be permitted) for you.

7. You may introduce documents and evidence in mitigation. However, you have agreed that the material facts alleged are true, so you may not contest these. In effect, you have plead guilty and you are just arguing about how much punishment (discipline) and what kind of punishment you should receive.

8. If you do intend to introduce documents and evidence in mitigation, be sure you know what the mitigating factors are (these are published in a separate board rule in the Florida Administrative Code for each professional board). These may include, for example, the fact that there was no patient harm, that there was no monetary loss, that restitution has been made, the length of time the professional has been practicing, the absence of any prior discipline, etc. You should submit these far ahead of time with a notice of filing, so that they are sent out to the board members with the other materials in your file. This is another reason to have experienced counsel represent you at the informal hearing.

9. Be prepared to take responsibility for your actions. If you are not prepared to take responsibility, then this means you must believe you are innocent and you should be at a formal hearing, not an informal one.

10. Be prepared to explain what went wrong, why it went wrong, and what remedial measures you have taken to prevent a recurrence of this type of event in the future. Show that you have learned from this experience and that you are not going to make the same mistake again.

11. It is our advice to always retain the services of an experienced attorney to represent you at such hearings. Often your professional liability insurance will cover this. If you have professional liability insurance, be sure that it contains a rider or addendum that provides coverage for professional license defense matters and administrative hearings. You need at least $25,000 to $50,000 in coverage for this type of defense. If necessary, you should contact your insurer or insurance agent and have the limits increased for a small additional premium.

Other Little Known Facts to Remember

Professional licensing matters are considered to be “penal” or “quasi-criminal” in nature. Therefore, you have your Fifth Amendment rights in relation to being required to give evidence against yourself. You cannot be compelled to do this in such matters. However, since it is an administrative proceeding and not a criminal proceeding, there is no requirement that the licensee be advised of this by a DOH investigator or attorney.

If you enter into a settlement agreement and attend the informal hearing to approve it, nothing you say or testify to at this hearing can later be used against you. This is because you are involved in an attempt to negotiate and settle (or compromise) the claims being made against you. It is a general rule of law that nothing the parties say in such settlement proceedings can later be used as evidence if the settlement agreement is not approved. The law tries to promote settlements among parties to any dispute in this way.

It is true that on occasion the Board will examine a case on an informal hearing and will decide to dismiss it. This is rare, but it does happen. Sometimes, it will be a tactical decision on the part of you and your attorney to elect to go to an informal hearing with the hope that the Board may examine the case and decide to dismiss it. However, you cannot count on this happening.

Don’t Wait Too Late; Consult with an Experienced Health Law Attorney Early

Do not wait until action has been taken against you to consult with an experienced attorney in these matters. Few cases are won on appeal. It is much easier to win your case when there is proper time to prepare and you have requested a formal hearing so that you may actually dispute the facts being alleged against you.

The lawyers of The Health Law Firm are experienced in both formal and informal administrative hearings and in representing massage therapists in investigations and at Florida Board of Massage Therapy hearings. Call now or visit our website www.TheHealthLawFirm.com.

About the Author: George F. Indest III, J.D., M.P.A., LL.M., is Board Certified by The Florida Bar in Health Law. He is the President and Managing Partner of The Health Law Firm, which has a national practice. Its main office is in the Orlando, Florida, area.www.TheHealthLawFirm.com The Health Law Firm, 1101 Douglas Ave., Altamonte Springs, FL 32714, Phone: (407) 331-6620.

“The Health Law Firm” is a registered fictitious business name of George F. Indest III, P.A. – The Health Law Firm, a Florida professional service corporation, since 1999.
Copyright © 1996-2012 The Health Law Firm. All rights reserved.

CRIMINAL LAW: Search and Seizure—Probable Cause for Search in Light of—Enactment of Medical Marijuana Law

The guest author of this article is Mark Rieber, Senior Attorney, National Legal Research Group.

In Commonwealth v. Canning, 28 N.E.3d 1156 (Mass. 2015), the court held as a matter of first impression that with the Commonwealth’s new medical marijuana law (“the Act”) in effect, if the police seek a warrant to search a property where they suspect an individual is cultivating or possesses marijuana, then they must first offer information sufficient to provide probable cause to believe that the individual is not properly registered under the Act to possess or cultivate the suspected substance. The court rejected the Commonwealth’s argument that any cultivation of marijuana remained illegal even under the Act. That argument further asserted that to the extent that the Act permits a limited class of properly licensed or registered persons to grow marijuana, the existence of a license or registration is an affirmative defense for a defendant charged with unlawful cultivation to raise at trial—the Commonwealth is not obligated to disprove such a status in, or to conduct a search at the outset of, the investigation.

The court found, however, that the Act effected a change in the statutory and regulatory landscape relevant to establishing probable cause for a search targeting such cultivation. After discussing the purpose and terms of the Act, the court held that a search warrant affidavit setting out facts that simply establish probable cause to believe the owner is growing marijuana on the property in question, without more, is insufficient to establish probable cause to believe that the suspected cultivation is a crime. “Missing are facts indicating that the person owning or in control of the property is not or probably not registered to cultivate the marijuana at issue.” Id. at 1165. Because the affidavit in the case before it did not set forth such facts, the court affirmed the order allowing the defendant’s motion to suppress.

About the Author: The author of this is article is Mark Rieber, Senior Attorney with National Legal Research Group in Charlottesville, Virginia. This case summary originally appeared on The Lawletter Blog. It is republished here with permission.

This article was originally published in The Lawletter Vol 38, No. 1.

Finding a Healthcare Providers Service Organization (HPSO) Insurance

By George F. Indest III, J.D., M.P.A., LL.M., Board Certified by The Florida Bar in Health Law

Countless times, we have been told by the health professionals we represent, especially  advanced registered nurse practitioners (ARNPs), pharmacists, licensed mental health counselors (LMHCs), massage therapists and physical therapists that after they received a complaint regarding their license from the Florida Department of Health (DOH) they had hard time trying to find an experienced attorney in Florida who would accept their professional liability insurance.  In this case, I am speaking specifically about Healthcare Providers Service Organization (HPSO) Insurance.


Get Insurance Now.

It is very important for every health professional to carry insurance that covers any investigation, complaint or administrative hearing that might be filed or opened against your license.  You may think that you are covered for this by your employer, but you are not.  If your employer contradicts this, ask for a statement in writing that your employer will pay for your legal defense for any such matter arising during your employment.

What typically happens, especially in the case of a hospital employee, nursing home employee, pharmacy employee or corporate employee, is that the employer is the one who terminates the employee and then files a complaint with the DOH.  The DOH then opens an investigation against the health professional.  The employer is not going to pay your legal defense costs if the employer has reported you.

You may very well be out of work, out of money and face an investigation and complaint that could terminate your professional license and career.  You should not take this chance.  Insurance such as HPSO Insurance is inexpensive and reliable.  Buy it while you can afford it. After the actions have occurred, it is too late.

HPSO Insurance Helps With Costly Legal Fees.

The healthcare professionals who are covered by HPSO Insurance have outstanding insurance coverage.  HPSO Insurance provides professional liability coverage that protects in the event of a lawsuit or negligence claim.  However, many times the professional receives a notice of an investigation, a subpoena for a deposition in someone else’s case, a demand because of an allegation of sexual harassment or sexual impropriety, a complaint because of a breach of medical records confidentiality or Health Insurance Portability and Accountability Act (HIPAA) Privacy complaint, or some other administrative type of action.

HPSO provides great coverage for these.  For example, HPSO currently reimburses up to $10,000 in legal fees and expenses just for representation of you at depositions.  HPSO currently reimburses up to $25,000 in legal fees and expenses for your defense in a DOH or Agency for Health Care Administration (AHCA) notice of investigation or complaint.  HPSO currently reimburses up to $25,000 in legal fees and expenses for your legal representation in defense of a complaint or investigation regarding breach of medical confidentiality.

Be Cautious of Cheap Insurance Policies.

If you have good insurance, it will pay for your legal expenses from the very beginning, so use it.  However, beware of cheap insurance policies from professional associations that do not provide any coverage for disciplinary complaints and licensure investigations.  Always check to be sure this is covered.  Get it in writing.  With some companies you have to pay an extra premium to obtain this coverage.  With some insurers, they do not offer it, and you have to purchase a completely separate policy covering just this.  It is worth it!  Do it!

Connect an Experienced Health Law Attorney if You are Contacted by an Investigator.

Also, you should immediately contact an experienced health law attorney if you are telephoned or visited by any investigator, or if you receive a letter advising you that an investigation has been opened regarding your care.  Call immediately for advice before you speak with an investigator or provide any documents or statements of any kind.

You cannot and should not seek “legal advice” on what to do from the investigator, from a DOH employee, from your professional board or from any attorney representing any of them.  They are not your friends.  They are on the side against you. You should definitely not take any advice from them.

Contact Health Law Attorneys Experienced in Representing Nurses.

The Health Law Firm’s attorneys routinely represent nurses in Department of Health (DOH) investigations, in appearances before the Board of Nursing in licensing matters and in many other legal matters. We represent nurses across the U.S., and throughout Florida.

To contact The Health Law Firm please call (407) 331-6620 or (850) 439-1001 and visit our website at www.TheHealthLawFirm.com.

About the Author: About the Author: George F. Indest III, J.D., M.P.A., LL.M., Board Certified by The Florida Bar in Health Law is an attorney with The Health Law Firm, which has a national practice. Its main office is in the Orlando, Florida, area. www.TheHealthLawFirm.com  The Health Law Firm, 1101 Douglas Avenue, Altamonte Springs, Florida 32714, Phone: (407) 331-6620.

KeyWords: Healthcare Providers Service Organization (HPSO) Insurance, professional liability insurance, health professionals, doctors, nurses, advanced registered nurse practitioners (ARNPs), massage therapists, licensed mental health counselors (LMHCs), social worker, assisted living facility (ALF), physical therapists, psychologists, defense attorney, defense lawyer, Florida defense attorney, experienced health lawyer Florida, experienced health attorney Florida, Florida defense lawyer, health facilities, Florida license defense, Florida Department of Health (DOH), DOH investigation, Agency for Health Care Administration (AHCA) investigation, AHCA complaint, administrative lawyer, administrative complaint, administrative hearings, administrative attorney

“The Health Law Firm” is a registered fictitious business name of and a registered service mark of The Health Law Firm, P.A., a Florida professional service corporation, since 1999.
Copyright © 2016 The Health Law Firm. All rights reserved.

By |2018-05-18T11:48:50-04:00May 15th, 2018|Categories: Massage Law Blog|2 Comments

25 Mistakes Massage Therapists Make After Being Informed of a Department of Health (DOH) Complaint

George Indest HeadshotBy George F. Indest III, J.D., M.P.A., LL.M., Board Certified by The Florida Bar in Health Law

The investigation of a complaint which could lead to the revocation of a massage therapist’s license to practice and the assessment of tens of thousands of dollars in fines, usually starts with a simple letter from the Department of Health (DOH). This is a very serious legal matter and it should be treated as such by the massage therapist who receives it. Yet, in many cases, attorneys are consulted by massage therapists after the entire investigation is over, and they have attempted to represent themselves throughout the case. Often, the mistakes that have been made severely compromise an attorney’s ability to achieve a favorable result for the massage therapist.

Here are the 25 biggest mistakes we see in the massage therapy cases after a DOH investigation has been initiated:

1. Failing to keep a current, valid address on file with the DOH (as required by law), which may seriously delay the receipt of the Uniform Complaint (notice of investigation), letters, and other important correspondence related to the investigation.2. Contacting the DOH investigator and providing him/her an oral statement or oral interview. (Note: There is no legal requirement to do this.)

3. Making a written statement in response to the “invitation” extended by the DOH investigator to do so. (Note: There is no legal requirement to do this.)

4. Failing to carefully review the complaint to make sure it has been sent to the correct massage therapist. (Note: Check name and license number).

5. Failing to ascertain whether or not the investigation is on the “Fast Track” which may then result in an emergency suspension order (ESO) suspending the massage therapist’s license until all proceedings are concluded. (Note: This will usually be the case if there are allegations regarding drug abuse, alcohol abuse, sexual contact with a patient, mental health issues, or failure to comply with PRN instructions.)

6. Providing a copy of the massage therapist’s curriculum vitae (CV) or resume to the investigator because the investigator requested them to do so. (Note: There is no legal requirement to do this.)

7. Believing that if they “just explain it,” the investigation will be closed and the case dropped.

8. Failing to submit a timely objection to a DOH subpoena when there are valid grounds to do so.

9. Failing to forward a complete copy of the patient record when subpoenaed by the DOH investigator as part of the investigation, when no objection is going to be filed.

10. Delegating the task of providing a complete copy of the patient record to office staff, resulting in an incomplete or partial copy being provided.

11. Failing to keep an exact copy of any records, documents, letters or statements provided to the investigator.

12. Believing that the investigator has knowledge or experience in health care matters or procedures being investigated.

13. Believing that the investigator is merely attempting to ascertain the truth of the matter and this will result in the matter being dismissed.

14. Failing to check to see if their medical malpractice insurance carrier will pay the legal fees to defend them in this investigation.

15. Talking to DOH investigators, staff or attorneys, in the mistaken belief that they are capable of doing so without providing information that can and will be used against them.

16. Believing that because they haven’t heard anything for six months or more the matter has “gone away.” The matter does not ever just go away.

17. Failing to submit a written request to the investigator at the beginning of the investigation for a copy of the complete investigation report and file and then following up with additional requests until it is received.

18. Failing to wisely use the time while the investigation is proceeding to interview witnesses, obtain witness statements, conduct research, obtain experts, and perform other tasks that may assist defending the case.

19. Failing to exercise the right of submitting documents, statements, and expert opinions to rebut the findings made in the investigation report before the case is submitted to the Probable Cause Panel of your licensing board for a decision.

20. Taking legal advice from their colleagues regarding what they should do (or not do) in defending themselves in the investigation.

21. Retaining “consultants” or other non-lawyer personnel to represent them.

22. Believing that the case is indefensible so there is no reason to even try to have it dismissed by the Probable Cause Panel.

23. Attempting to defend themselves.

24. Believing that because they know someone with the Department of Health or a state legislator, that influence can be exerted to have the case dismissed.

25. Failing to immediately retain the services of a health care attorney who is experienced in such matters to represent them, to communicate with the DOH investigator for them, and to prepare and submit materials to the Probable Cause Panel.

Bonus Point: 26. Communicating with the Department of Health about the pending case.

Not every case will require submission of materials to the Probable Cause Panel after the investigation is received and reviewed. There will be a few where the allegations made are not “legally sufficient” and do not constitute an offense for which the massage therapist may be disciplined.

In other cases, an experienced health care attorney may be successful in obtaining a commitment from the DOH attorney to recommend a dismissal to the Probable Cause Panel. In other cases (usually the most serious ones), for tactical reasons, the experienced health care attorney may recommend that you waive your right to have the case submitted to the Probable Cause Panel and that you proceed directly to an administrative hearing. The key to a successful outcome in all of these cases is to obtain the assistance of a health care lawyer who is experienced in appearing before the Board of Medicine in such cases and does so on a regular basis.

Contact Health Law Attorneys Experienced with Department of Health Investigations of Massage Therapists.

The attorneys of The Health Law Firm provide legal representation to massage therapists in Department of Health (DOH) investigations and other types of investigations of health professionals and providers.To contact The Health Law Firm, please call (407) 331-6620 or (850) 439-1001 and visit our website at www.TheHealthLawFirm.com.About the Author: George F. Indest III, J.D., M.P.A., LL.M., is Board Certified by The Florida Bar in Health Law. He is the President and Managing Partner of The Health Law Firm, which has a national practice. Its main office is in the Orlando, Florida, area. www.TheHealthLawFirm.com The Health Law Firm, 1101 Douglas Ave., Altamonte Springs, FL 32714, Phone: (407) 331-6620.

“The Health Law Firm” is a registered fictitious business name of George F. Indest III, P.A. – The Health Law Firm, a Florida professional service corporation, since 1999.

Copyright © 1996-2012 The Health Law Firm. All rights reserved.

Florida Woman Sues After Claims She Was Sexually Assaulted at Massage Envy

George Indest HeadshotBy George F. Indest III, J.D., M.P.A., LL.M., Board Certified by The Florida Bar in Health Law

On December 7, 2017, a woman who accused a Coral Gables Massage Envy masseur of sexual assault filed a civil lawsuit in Miami-Dade circuit court against that franchise’s owner. The suit charges that First World Financial Corp.’s negligence in hiring and business practices cleared the way for the alleged sexual assault by the male licensed massage therapist.

According to the suit, she is seeking compensation for “injury and expense, including but not limited to, psychological and emotional injuries, mental anguish, and the loss of the enjoyment of life.”

I recently wrote a blog about a similar case that was filed in Washington, D.C., seeking $25 million in damages. Read it here.

Details of the Florida Suit.

After the allegations came forward, the massage therapist was charged criminally with sexual battery and felony battery. He pled guilty to felony battery and received five years probation. His massage therapist license has been under an emergency restriction order from the Florida Department of Health (DOH), which still allows him to give massages, but a supervisor must be present. His license expired in August 2017.

The woman, who is not named in the suit, claims that First World knew of the numerous nationwide sexual assault reports but didn’t tell women coming in for massages. Nor did First World “have reasonable policies and procedures in place to protect its female guests from a sexual misconduct by a person performing services at Massage Envy.

To read a prior blog I wrote on a similar case involving a massage therapist in hot water, click here.

Contact Health Law Attorneys Experienced in the Representation of Massage Therapists.

The attorneys of The Health Law Firm provide legal representation to massage therapists in Department of Health (DOH) investigations, licensing matters and other types of investigations of health professionals and providers. We have represented a number of massage therapists who have had summary actions initiated against their massage therapy licenses by the Department of Health (DOH).

To contact The Health Law Firm, please call (407) 331-6620 or (850) 439-1001 and visit our website at www.TheHealthLawFirm.com.

Sources:

Neal, David. “She says she was sexually assaulted at Massage Envy. Now she’s suing.” Miami Herald. (November 17, 2017). Web.

Neal, David. “7 healthcare workers disciplined over fraud, drug use, rape allegation.” Miami Herald. (June 17, 2017). Web.

About the Author: George F. Indest III, J.D., M.P.A., LL.M., is Board Certified by The Florida Bar in Health Law. He is the President and Managing Partner of The Health Law Firm, which has a national practice. Its main office is in the Orlando, Florida area. www.TheHealthLawfirm.com The Health Law Firm, 1101 Douglas Ave., Altamonte Springs, FL 32714, Phone; (407) 331-6620.

KeyWords: Legal representation for massage therapists, legal representation for Department of Health (DOH) Investigation, legal representation for Board of Massage Therapy investigations, Massage Therapy License defense attorney, massage therapy licensure attorney, licensure defense attorney, legal representation for massage therapy license investigation, massage therapy defense, legal representation for massage therapy regulations, legal representation for employee of massage establishment, legal representation for employer of massage establishment, massage therapist attorney, regulations of massage therapists, legal representation for health professionals, health law defense attorney, The Health Law Firm, reviews of The Health Law Firm attorneys, The Health Law Firm attorney reviews

“The Health Law Firm” is a registered fictitious business name of George F. Indest III, P.A. – The Health Law Firm, a Florida professional service corporation, since 1999.
Copyright © 2018 The Health Law Firm. All rights reserved.

 

Overcoming License Suspension and Revocation Pending Appeal

By: Lance O. Leider, J.D.

If you are a doctor, nurse, dentist, psychologist, pharmacist, massage therapist or other licensed health professional whose license has been recently revoked or suspended, there may still be hope. Ordinarily, you must immediately stop practicing or you risk being prosecuted for unlicensed practice, a felony. Although this blog deals with Florida law, similar relief may be available in other states, too.

One of the hardest things about having a license suspended or revoked is that it immediately cuts off the licensee’s sole source of income. If you have a thriving practice, this will usually destroy any value your business has. Without income, paying your bills will be a challenge, much less the cost to fight the legal action or to appeal.

Even if you appeal the decision and win the appeal, you will be out of practice for many months, often more than a year, before your license is reinstated. You still have all the lost income and business, and you never get this time and money back.

Fortunately, Florida law provides an avenue for temporary relief from the adverse decision, so that you may retain your license and practice your profession pending appeal of your case. This legal process is called a writ of supersedeas.

What is Supersedeas Relief?

Supersedeas relief is a form of relief granted by a reviewing court (court of appeal) that suspends the enforcement of the judgement of the lower court (or agency) while the underlying issues are decided on appeal. What this means is that you can have the action to revoke or suspend your license put on hold while you appeal the decision of the Department of Health (DOH).

This relief is authorized in two separate places in Florida law: Section 120.68(3), Florida Statutes, and Rule 9.190(e)(2)(C), Florida Rules of Appellate Procedure. Both of these provisions state that a reviewing court can grant a stay of enforcement of the revocation or suspension of a license pending review.

The relief is not automatic, however. Both provisions specifically prevent supersedeas from being granted if the licensee poses a probable threat to the health, safety or welfare of the state. Fortunately, it is the burden of the agency whose order is being reviewed to prove that there is a danger to the public.

Additionally, the Appellate Rule permits you to ask for expedited review. (Which of course is recommended because you want to be back to work as quickly as possible, right?) This means that the agency only has ten (10) days to file its opposition. This shortened time period may make it difficult for an overworked government attorney to file on time or to produce quality opposition.

Steps to Seeking Supersedeas Relief.

1. File an appeal of the Final Order revoking or suspending your license with the appropriate agency and a copy to the appellate court. Be sure to follow all appellate rules and instructions.

2. File a Petition for Expedited Supersedeas Relief with the appellate court at the same time.

3. If you receive a favorable ruling from the court, deliver that order to the licensing agency (in this case, the DOH) and request that your license be reinstated immediately.

Other Considerations.

It is important to note that this form of relief will not make the underlying action disappear. Your return to practice will only be temporary, unless you win the appeal. You will still have to show the licensing agency did something contrary to law when it imposed the discipline in order for the appellate court to overturn the decision. This is not often an easy task. Furthermore, the law only permits a thirty (30) day window in which to appeal the agency’s decision, after which your rights are lost and you are very likely stuck with the decision.

Appeals Are Very Technical and Require a Thorough, Specialized Knowledge of the Law.

What few people understand is that appeals are very technical and have complex, procedural rules that you must follow. An appeal of an agency final order is not the place to argue about the facts of your case or to try to prove different facts.

An appeal is all about the law and the court cases that have interpreted the law. Unless the agency (in this case your board) made a legal error and violated the law, you won’t win.

For an appeal, a person needs an attorney. To prevail on an appeal, you must have a detailed knowledge of the correct, relevant court cases and you must be able to argue these in the proper form in legal briefs.

There are many other procedural steps you must follow in an appeal that only a good appellate attorney will know. To attempt to do this yourself is not advisable.

Contact Health Law Attorneys With Experience Handling Licensing Issues.

If you have had a license suspended or revoked, or are facing imminent action against your license, it is imperative that you contact an experienced healthcare attorney to assist you in defending your career. Remember, your license is your livelihood, it is not recommended that you attempt to pursue these matters without the assistance of an attorney.

The Health Law Firm routinely represents physicians, dentists, nurses, medical groups, clinics, and other healthcare providers in personal and facility licensing issues.

To contact The Health Law Firm please call (407) 331-6620 or (850) 439-1001 and visit our website at www.TheHealthLawFirm.com.

About the Author: Lance O. Leider is an attorney with The Health Law Firm, which has a national practice. Its main office is in the Orlando, Florida, area. www.TheHealthLawFirm.com The Health Law Firm, 1101 Douglas Avenue, Altamonte Springs, Florida 32714, Phone: (407) 331-6620.

“The Health Law Firm” is a registered fictitious business name of George F. Indest III, P.A. – The Health Law Firm, a Florida professional service corporation, since 1999.
Copyright © 1996-2012 The Health Law Firm. All rights reserved.

Florida Statute on Massage Therapy Establishments: Employees Must Present Documentation to Department of Health and Law Enforcement Agencies

By Lance O. Leider, J.D., The Health Law Firm and George F. Indest III, J.D., M.P.A., LL.M., Board Certified by The Florida Bar in Health Law

Currently there is a fight in Florida, headed by the Attorney General (AG), to stop human trafficking. AG Pam Bondi has worked to make Florida a zero-tolerance state for human trafficking. During the 2012 legislative session, she advocated for legislation that was supposed to crack down on human trafficking.

Section 480.0535, Florida Statutes, is one result of her efforts. The statute contains details on the documentation required for employees working in a massage therapy establishment. These requirements provide the Department of Health (DOH) and law enforcement agencies the means to forcibly identify, investigate and arrest people who are supposedly involved in human trafficking.

Click here to read Section 480.0535, Florida Statutes.

This statute became effective on July 1, 2012.

Documents Required While Working in a Massage Therapy Establishment.

Under Section 480.0535, Florida Statutes, a person employed by a massage therapy establishment and any person performing massage therapy must immediately present, upon the request of a DOH investigator or a law enforcement officer, a form of valid government identification.

Valid identification includes:

– A valid driver’s license;
– A valid identification card;
– A valid United States passport;
– A naturalized certificate issued by the United States Department of Homeland Security;
– A valid alien registration receipt card (green card); or
– A valid employment authorization card issued by the United States Department of              Homeland Security.

A person operating a massage therapy establishment must immediately present upon the request of a DOH investigator or law enforcement officer:

– Valid government identification while in the establishment; and
– A copy of the documentation specified above for each employee and any person              performing massage therapy in the establishment.

Penalties for Not Complying.

A person who violates any provision of this statute is subject to criminal penalties for failure to comply with the documentation requirements.

The first violation is considered a misdemeanor of the second degree. The offender could face jail time of up to sixty (60) days and a $500 fine. The second violation is considered a misdemeanor of the first degree. The offender could spend up to a year in jail and have to pay a $1,000 fine. For someone who commits a third or subsequent violations, that person could be charged with a felony of the third degree. That offender faces imprisonment of up to five (5) years and a $5,000 fine.

This statute criminalized the act of not having identification on you during work as a massage therapist.

Previous Investigation of Massage Therapy Businesses Led to Emergency Suspension Orders.

You may remember back in September 2012, an investigation into several massage therapy businesses by the Florida DOH, Clearwater Human Trafficking Task Force and the South Florida Human Trafficking Task Force turned up more than 200 massage therapists who appeared to have obtained their massage therapy licenses by fraud. Subsequently, the Florida Surgeon General signed emergency suspension orders (ESOs) for more than 160 massage therapists in Florida.

Authorities said the ESOs were, in part, an effort to target Florida’s human trafficking problem. Authorities stated that massage parlors are a typical place for finding victims of human trafficking. Click here to read more from our previous blog.

Contact Health Law Attorneys Experienced in the Representation of Massage Therapists.

The attorneys of The Health Law Firm provide legal representation to massage therapists in Department of Health (DOH) investigations, licensing matters and other types of investigations of health professionals and providers.

We have represented a number of Chinese massage therapists who have had summary actions initiated against their massage therapy licenses by the Department of Health (DOH). Many of these have confided in us that they believe there may be discrimination involved in the way they were targeted. We are looking into such allegations for several clients.

To contact The Health Law Firm, please call (407) 331-6620 or (850) 439-1001 and visit our website at www.TheHealthLawFirm.com.

Comments?

Did you know about this Florida Statue? Does your massage therapy business comply with the statute? Do you think it will help in preventing human trafficking? Please leave any thoughtful comments below.

Have you been the subject of any discrimination or harassment from investigators based on your race or national origin? We’d like to hear from you if you have.

About the Authors: Lance O. Leider is an attorney with The Health Law Firm, which has a national practice. Its main office is in the Orlando, Florida, area. www.TheHealthLawFirm.com The Health Law Firm, 1101 Douglas Avenue, Altamonte Springs, Florida 32714, Phone: (407) 331-6620.

George F. Indest III, J.D., M.P.A., LL.M., is Board Certified by The Florida Bar in Health Law. He is the President and Managing Partner of The Health Law Firm, which has a national practice. Its main office is in the Orlando, Florida, area. www.TheHealthLawFirm.com The Health Law Firm, 1101 Douglas Ave., Altamonte Springs, FL 32714, Phone: (407) 331-6620.

“The Health Law Firm” is a registered fictitious business name of George F. Indest III, P.A. – The Health Law Firm, a Florida professional service corporation, since 1999.
Copyright © 1996-2012 The Health Law Firm. All rights reserved.

Please, Please, Please Do NOT Talk to the Department of Health (DOH) Investigator

By George F. Indest III, J.D., M.P.A., LL.M., Board Certified by The Florida Bar in Health Law

Massage therapists, I beseech you: please do not talk to a Department of Health (DOH) investigator until you have talked to a health lawyer who is experienced with DOH investigations and board licensing complaints. Do not answer or respond to even the most basic questions about where you work now, what your address is or if you know patient x, until consulting with counsel.

Admitting to the Simplest Facts May Harm You.

We are routinely consulted by massage therapists and other healthcare providers for representation after they have discussed the case and after it is too late to undo the damage they have caused to themselves. Often they do not understand the seriousness of the matter or the possible consequences, until it is too late. Admitting to even the most basic facts causes damage to any possible defense.

Administrative Licensure Investigations are “Quasi-Criminal.”

The vast majority of massage therapists and even most attorneys do not realize that DOH investigations concerning complaints against a massage therapist’s license are considered to be “penal” or “quasi-criminal” proceedings. This means the same laws and constitutional rights apply to them as apply to criminal investigations. However, since they are also administrative proceedings and not strictly criminal proceedings, investigators do not need to advise you of your Miranda rights or tell you you have the right to remain silent, the right to an attorney, etc.

In any criminal investigation a good criminal defense attorney would always tell you “Do not talk to the investigator” and “Tell the investigator you have a lawyer.”

Investigators’ Techniques Try to Get You to Not Consult a Lawyer.

DOH investigators, police investigators, FBI investigators and other law enforcement officers, are well trained in investigative techniques and how to get information out of suspects. Often the approach used is to catch you by surprise before you even know there is an investigation and the investigation is of you. Another technique used is to lull you into a false sense of security that the investigation is about someone or something else and not you. Another investigative technique is to convince you that you need to “Tell your side of the story” so that the investigation is accurate. Yet another is that “Things will go much better for you if you cooperate.” None of these things are true.

However, if it is truly in your best interest to cooperate or to make a statement, after you consult with your attorney, your legal counsel will surely advise you to do this. The investigator should not mind waiting until you consult your attorney. However, many will go to extremes to convince you that you don’t need an attorney and shouldn’t get an attorney.

 

Consult an Experienced Health Law Attorney.

The attorneys of The Health Law Firm are experienced in dealing with DOH investigators, AHCA surveyors, Drug Enforcement Administration (DEA) agents, FBI agents, police and sheriff’s office investigators, OIG special agents (S/As) and Medicaid Fraud Control Unit (MFCU) investigators. To contact The Health Law Firm, please call (407) 331-6620 or (850) 439-1001 and visit our website at www.TheHealthLawFirm.com.

About the Author: George F. Indest III, J.D., M.P.A., LL.M., is Board Certified by The Florida Bar in Health Law. He is the President and Managing Partner of The Health Law Firm, which has a national practice. Its main office is in the Orlando, Florida, area. www.TheHealthLawFirm.com The Health Law Firm, 1101 Douglas Ave., Altamonte Springs, FL 32714, Phone: (407) 331-6620.

Disclaimer: Please note that this article represents our opinions based on our many years of practice and experience in this area of health law. You may have a different opinion; you are welcome to it. This one is mine.

Note: This article is for informational purposes only; it is not legal advice.

Orlando Chiropractor Faces 50 Years in Prison for PIP Scam

Headshot of attorney George IndestBy George F. Indest III, J.D., M.P.A., LL.M., Board Certified by The Florida Bar in Health Law

An Orlando health clinic owner and one other person were recently arrested on charges of defrauding multiple insurance companies and payers, according to the Florida Division of Insurance Fraud. Dr. Troy Godsey of Spine Health Solutions, P.A., allegedly provided treatments to”patients” involved in auto accidents. Three insurance companies received a $300,000 bill for reimbursements under the “patients'” personal injury protection (PIP) auto insurance. The companies reportedly paid out $100,000 before realizing it was a scam.

Godsey Operated Under the Pretense That He Was the Sole Owner of the Clinic.

Although Godsey, a licensed chiropractor, was allegedly the sole owner of the clinic, it was employee Renata Berriel Deazevedo, a non-licensed individual, who carried out the daily operations of the business. According to the Florida Department of Financial Services, Godsey was previously granted an exemption from clinic licensing requirements with the Agency for Health Care Administration. This reportedly allowed him to run the PIP fraud scheme without having to obtain a separate health care clinic license that would make the practice subject to periodic inspections. This further violated Florida’s PIP insurance laws.

It seems Godsey was attempting to create a “straw ownership” to avoid the proper licensing of his clinic. In accordance with Florida law requirements, it should have been licensed under the Florida Health Care Clinic Licensure Act (HCCLA). To operate a clinic in violation of the HCCLA is a felony. Furthermore, every day of operation is a different felony charge. In addition, all medical bills that an illegal clinic issues are void.

To learn more about health care clinic licensing, read one of our past blogs here.

Facing Prison for Half a Century.

Godsey’s and Deazevedo’s felony charges include operating an unlicensed health care clinic and filing false and fraudulent insurance claims. These charges carry with them penalties in excess of 50 years prison time. If convicted, the pair are faced with spending more than half a century behind bars. For most individuals, this would equate to a life sentence behind bars.

To read the press release click here.

Physicians, especially dentists, chiropractors, and optometrists, should always be extremely wary about working for a clinic or medical group owned in any part by someone who is not a licensed health professional. If it is owned in any part, even one percent (1%) by a person or business entity that is not a Florida licenced health professional, it may be operating illegally. Dentists, optometrists and chiropractors have even more restrictions placed on their practices than other health professionals in Florida and most other states.

Physicians who are “partners,” “shareholders” or “co-owners” with unlicensed personnel need to ensure they are in full compliance with the HCLLA and all other applicable Florida laws and regulations. Consult with an ecperienced health lawyer before making an expensive mistake. To see another blog I wrote on these issues, click here.

Comments?
Have you ever been a victim or suspect of a PIP scam? Please leave any thoughtful comments below.

Contact Experienced Health Law Attorneys.

The Health Law Firm routinely represents pharmacists, pharmacies, physicians, nurses and other health providers in investigations, regulatory matters, licensing issues, litigation, denials and demands for repayment from insurance companies, inspections and audits involving the Drug Enforcement Administration (DEA), Federal Bureau of Investigation (FBI), Department of Health (DOH) and other law enforcement agencies. Its attorneys include those who are board certified by The Florida Bar in Health Law as well as licensed health professionals who are also attorneys.

To contact The Health Law Firm, please call (407) 331-6620 or (850) 439-1001 and visit our website at www.TheHealthLawFirm.com.

Sources:

Chief Financial Officer’s Press Office. “Orlando PIP Clinic Owner Arrested for Defrauding Insurance Companies of More Than $100,000.” (June 25, 2015). From http://www.myfloridacfo.com/sitePages/newsroom/pressRelease.aspx?id=4520

Health News Florida Staff. “Chiropractor Caught In PIP Scam.” (June 29, 2015). Health News Florida. From: http://health.wusf.usf.edu/post/chiropractor-caught-pip-clinic-scam

About the Author: George F. Indest III, J.D., M.P.A., LL.M., is Board Certified by The Florida Bar in Health Law. He is the President and Managing Partner of The Health Law Firm, which has a national practice. Its main office is in the Orlando, Florida area. www.TheHealthLawFirm.com The Health Law Firm, 1101 Douglas Ave., Altamonte Springs, FL 32714, Phone: (407) 331-6620.

KeyWords: PIP fraud, PIP claims, health care clinic owners, health fraud defense lawyer, Agency for Health Care Administration, Health Care Clinic Licensure Act, health care clinic attorney, litigation over ownership of clinic, corporate practice of medicine, health fraud defense attorney, false claims lawyer,insurance fraud, Florida Division of Insurance Fraud, health law firm, The Health Law Firm, fraudulent claims, false claims attorney, health care fraud, health care clinic attorney

“The Health Law Firm” is a registered fictitious business name of George F. Indest III, P.A. – The Health Law Firm, a Florida professional service corporation, since 1999.
Copyright © 1996-2015 The Health Law Firm. All rights reserved.

By |2020-02-13T13:23:38-05:00May 15th, 2018|Categories: Massage Law Blog|Tags: , |1 Comment
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