Suspended Florida Massage Therapists are Being Asked to Voluntarily Relinquish Their Licenses

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

On September 19, 2012, Florida state authorities announced the suspension of more than 80 massage therapists’ licenses. They are accused of fraudulently obtaining their licenses based on fake documentation obtained from a staff member at the Florida College of Natural Health, in Pompano Beach, Florida. On September 20, 2012, one massage therapist, whose license was suspended, spoke to the Sun Sentinel saying she had legitimately completed all of the requirements to obtain a license and is now being asked by the Department of Health (DOH) to voluntarily relinquish her license.

Click here to read the original blog post on the suspension of 81 massage therapists’ licenses.

Alleged “Rogue” Employee at the Florida College of Natural Health Immediately Let Go from College.

According to the Sun Sentinel, every massage therapist that had his or her license suspended allegedly received fraudulent documents from a “rogue” employee at the Florida College of Natural Health. The documents allegedly made it appear the person had completed the necessary course requirements to obtain a massage therapy license. Officials with the Florida College of Natural Health said the former staff member was immediately terminated when the scam came to light.

DOH Official First Discovered Alleged Fake Documents.

A DOH official noticed the difference between one applicant’s fraudulent credentials and the actual course load at the Florida College of Natural Health, according to the Sun Sentinel. The credentials allegedly stated the applicant had completed a 500-hour massage course, but according to the school, the basic massage program the college offers is 768 hours.

One Suspended Massage Therapist Talks About Having Her License Suspended.

One South Florida massage therapist spoke to the Sun Sentinel about her license suspension. She claims the investigation against her license has no merit, and said she studied at three different schools, including the Florida College of Natural Health. A check on the DOH website, showed that she has been licensed in Florida since 2008.

To read the Sun Sentinel article, click here.

DOH Asking Suspended Massage Therapists to Voluntarily Relinquish Licenses.

According to the now suspended massage therapist, she received a notice of investigation letter from the DOH. Included in the letter was a Voluntary Relinquishment of License form.

There is a blog on our website that talks about the consequences of having a massage therapy license revoked or relinquishing a license upon notice of an investigation. Click here to read this prior blog.

From experience, we know a charge can be filed causing an investigation to be opened against a massage therapist by many different sources and often without any supporting evidence. If challenged and defended by an attorney with knowledge and experience in such matters, these investigations may often be dismissed with no disciplinary action against the massage therapist’s license.

More Consequences of a Voluntary Relinquishment.

A voluntary relinquishment in such circumstances is treated the same as a disciplinary revocation. The negative consequences of this are many and long lasting. They include:

1. Mandatory report to the National Practitioner Data Base (NPDB) (Note:  Healthcare Integrity and Protection Data Bank or HIPDB recently folded into NPDB) which remains there for 50 years.

2. Any other states or jurisdictions in which the client has a license will also initiate action against him or her in that jurisdiction.  (Note:  I have had two clients who had licenses in seven other states).

3. The Office of Inspector General (OIG) of Health and Human Services (HHS) will take action to exclude the provider from the Medicare Program.  If this occurs (and most of these offense require mandatory exclusion) the provider will be placed on the List of Excluded Individuals and Entities (LEIE) maintained by the HHS OIG.

4. If the above occurs, the provider is also automatically “debarred” or prohibited from participating in any capacity in any federal contracting and is placed on the U.S. General Services Administration’s (GSA’s) debarment list.

5. The massage therapist’s national board or certifying organization will act to revoke his or her certification. After this, you won’t be able to be licensed anywhere in the U.S.

For more reasons why a health care provider should not relinquish a professional license, click here.

Contact Health Law Attorneys Experienced with Department of Health (DOH) Investigations 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.

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

Sources:

Clarkson, Brett. “Over 80 Massage Therapists in Trafficking Probe Used Fake Credentials from Same College, Say Regulators.” Sun Sentinel. (September 20, 2012). From: http://articles.sun-sentinel.com/2012-09-20/news/fl-massage-trafficking-20120920_1_massage-therapists-massage-licenses-fake-credentials

About the Authors: 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.

Christopher E. Brown, J.D., 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 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.

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.

The Collateral Effects of Voluntary Relinquishment with Investigation Pending or other Discipline on Your Massage Therapy License

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

Many massage therapists are unaware of the drastic long-term effects that discipline on their massage therapist license could have. This includes submitting a voluntary relinquishment of the massage therapist’s license while there is an investigation pending or while there are charges pending. Although this particular article is being prepared specifically for massage therapists, similar principles apply to physicians, nurses, pharmacists, psychologists, dentists, mental health counselors and other licensed health professionals.

A voluntary relinquishment of the license after notice of the opening of an investigation or while a charge is pending is treated the same as a disciplinary revocation of the license. It is reported out the same and is treated the same. In some cases it may even be worse, if the agreement to voluntarily relinquish also includes an agreement to never apply for another license again.

Even discipline on the massage therapy license such as a suspension, probation, restrictions, etc., can have far-lasting adverse repercussions. Most people do not understand what else can happen as a result of a discipline, revocation or even voluntary relinquishment (under these circumstances).

Reports to National Organizations on the Discipline.

First and foremost, the discipline (including voluntary relinquishment) will be a public record. It will also be reported out to national reporting agencies, including the National Practitioner Data Bank (NPDB) and the National Certification Board for Therapeutic Massage and Bodywork (NCBTMB).

As a result of the report to the NPDB, the Office of the Inspector General (OIG) of the U.S. Department of Health and Human Services (HHS) will probably start action to exclude the disciplined therapist from the Medicare Program and place him or her on the OIG’s List of Excluded Individual’s and Entities (LEIE). This will bar you from the Medicare Program or working for or contracting with anyone else who does (including insurer’s medical clinics and most health care providers). This by itself will also have many negative consequences. For example, if you are excluded from the Medicare Program you are automatically placed on the U.S. General Services Administration (GSA) “debarred” list. You are automatically excluded from working for or contracting with, in any capacity, any organization, individual or agency that has any government contracts or accepts any federal funding. This act can bar you from working for a public school, working as a real estate agent, or many other jobs.

The NCBTMB will also take action to revoke your national certification given by the NCBTMB. This will exclude you from being licensed in any other state.

Summary of Adverse Consequences of Revocation or Other Discipline.

To summarize, the most important adverse problems that may be caused as a result of discipline on your license, may include the following:

1. May cause discipline to be commenced against any other health professional license you have, such as a nurse, acupuncture physician, chiropractic assistant, nurse’s aide, home health assistant, etc.

2. Will prevent you from obtaining any health professional license in the future.

3. May cause discipline to be commenced against any massage therapy establishment license for a massage therapy establishment you own in whole or in part.

4. Any other states or jurisdictions in which you have a license will also initiate action against him or her in that jurisdiction.

5. The National Certification Board for Therapeutic Massage and Bodywork (NCBTMB) will also take action to revoke your national certification given by the NCBTMB. This will exclude you from being licensed in any other state and will cause any other state in which you are licensed to take action against you.

6. Mandatory report to the National Practitioner Data Base (NPDB)), which remains there for 50 years. (Note: Healthcare Integrity and Protection Data Bank or HIPDB recently folded into NPDB.)

7. The OIG of HHS will take action to exclude the provider from the Medicare Program. If this occurs, (and most of these offenses require mandatory exclusion) the provider will be placed on the List of Excluded Individuals and Entities (LEIE) maintained by the OIG HHS.

8. If the above occurs, the provider is also automatically “debarred” or prohibited from participating in any capacity in any federal contracting and is placed on the U.S. General Services Administration’s (GSA’s) debarment list.

9. Third party payors (health insurance companies, HMOs, etc.) will terminate the professional’s contract or panel membership with that organization.

10. Regardless of any of the above, any facility licensed by AHCA (hospitals, skilled nursing facilities (SNFs), public health clinics, group homes for the developmentally disabled, etc.) that are required to perform background screenings on their employees will result in AHCA notifying the facility and the professional that he or she is disqualified from employment.

What Can be Done?

If you have submitted a voluntary relinquishment without understanding the consequences, and the Board of Massage Therapy (“Board”) has not acted to accept it, you may withdraw it. What we do is submit a letter to the Executive Director of the Board stating it was submitted by mistake without fully understanding the consequences, and the massage therapist desires to withdraw the voluntary relinquishment. We submit this immediately (keeping a copy, of course) and by certified mail, return receipt requested, so we have proof of sending and proof of receipt.

However, you must also ask for a formal hearing to dispute the facts in your case, as well. We usually do this at the same time and by the same method. If you fail to request a formal hearing, then you are waiving your rights to challenge your guilt or innocence.

If you have requested an informal hearing, you have made a big mistake. For an informal hearing, you admit that everything stated in the complaint against you is true. You have admitted that all of the charges against you are correct, so you are pleading guilty to the charges. You are then giving up the right to have a hearing to determine whether you are really guilty or innocent. All you are going to be arguing about is the punishment you will receive. You will not be allowed to testify on or introduce any evidence on your guilt or innocence.

If you have submitted a request for an informal hearing, not realizing this, then what we usually do is to submit an immediate request to have the hearing changed over to a formal administrative hearing where you are allowed to dispute the facts against you and prove your innocence. In such a case, it is necessary to submit a Petition for a Formal Administrative Hearing and to specify which facts are contested or disputed and why.

The case is then sent to a neutral administrative law judge (ALJ) to hold a hearing on the case. The state Department of Health (DOH) (the parent agency over the Board of Massage Therapy) is then required to prove the facts against you by clear and convincing evidence. In fact, you do not even have to introduce any evidence or testimony, the burden of proof is on the DOH to prove the case against you.

Emergency Suspension Orders (ESOs), Appeals and Election of Rights (EOR) Forms.

In Florida, if you have an Emergency Suspension Order (ESO), you can appeal it to a court of appeal. The problem with this is that it is very technical to do so and is very costly. Call an attorney who specializes in appeals or appellate law and ask. Additionally, the court of appeal only rules on the law and not the facts. The appeal court will be required to accept everything that is stated in the ESO as true. There is no fact hearing, there are only legal arguments. Your basic case will be delayed while this takes place, and you will probably lose on appeal. This may not be the correct choice for you.

However, if there is an ESO, you also have the right to an expedited fact hearing on it. This may be the best course of action if you have documents and facts to show you are not guilty of the charges.

Furthermore, there will also be an additional document served on you, an administrative complaint (AC). When you receive the AC, it will probably say just about the same thing as the ESO. You will be given your hearing rights when this occurs (called an “Election of Rights” form or “EOR”). As we indicated above, you will almost always want to select a formal administrative hearing in which you dispute (challenge or contest) the allegations (charges) made against you. This is the only way you will have the right to have a full and fair hearing on your innocence of the charges. Make sure it is submitted in plenty of time to be received within the 21 days given. Seek legal advice in completing it. Do not admit to anything; you don’t have to as the state DOH has the burden of proof.

The Need for an Experienced Health Law Attorney.

It is very difficult to take the actions necessary yourself if you do not have any legal training. Nonlawyers make many stupid mistakes in these proceedings, including submitting written statements that can be used against them when they do not have to do so, talking to the DOH investigator or Board personnel, talking to the DOH prosecuting attorney, making admissions which can be used against them, and waiving their rights when they do not have to do so.

Most attorneys are not familiar with these types of procedures if they do not practice health law. They do not realize that the same rights which apply in criminal cases also apply to professional licensure cases. You need to find and hire an attorney experienced in this type of case. That would be a health law attorney, and preferably one who is Board Certified by the Florida Bar in Health Law.

What You Should Do.

So the bottom line is that if you are innocent and want to dispute any charges against you, you should:

1. If you have professional insurance coverage, such as HPSO Insurance, see if your insurance will cover your legal defense expenses in this type of case. Many will. We know HPSO will.

2. Act right away to request all of your rights in any matter. Make sure that anything you submit is actually received (not mailed, received) before the deadline given.

3. Do not call, write or speak to the DOH investigator, Board personnel, DOH personnel or the DOH attorney.

4. Do not make a statement, written or oral, to the DOH investigator, Board personnel, DOH personnel or the DOH attorney.

5. Contest (dispute or fight) every action that might be stated against you, including one by the NCBTMB or OIG.

6. Do not admit to anything you don’t have to as the state DOH has the burden of proof.

7. Keep copies of all forms or letters submitted, along with proof of mailing and proof of receipt (send via certified mail, return receipt requested).

8. Retain the services of a health lawyer who has experience in Board of Massage Therapy/Department of Health (DOH) cases (ask him or her how many he or she has actually done). DO THIS FIRST, NOT LAST!

Contact Health Law Attorneys Experienced with Department of Health (DOH) Investigations 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.

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.

 

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.

Department of Health Licensees Have Statutory Duty to Update Addresses

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

A recent case involving the Florida Department of Business and Professional Regulation (DBPR) demonstrates how important it is for all professional licensees, including Department of Health (DOH) licensees, to immediately update their addresses with the licensing agency when there is change.

Appellant Sought to Reverse Revocation of Two Licenses.

In Griffis v. Department of Business and Professional Regulation, the appellant filed an appeal of the DBPR’s order revoking two of his licenses. The order also imposed a fine and ordered the appellant to pay restitution to a customer. The order was rendered on January 26, 2010. The appellant did not file his notice of appeal until October 15, 2010, over nine months later.

Court Dismissed Appeal As Untimely.

The First District Court of Appeal dismissed the appeal as untimely. The limitations period for the filing of a notice of appeal of an administrative action is jurisdictional. Because the notice of appeal was not filed within 30 days of rendition, the untimely filing precluded the court from exercising jurisdiction over the appeal. To view the opinion, click here.

Appellant Argued Late Filing Should Be Excused Because He Was Incarcerated.

The appellant argued that his late filing should be excused. According to the appellant, he did not learn of the final order until October 2010 because he was incarcerated at the time the order was issued. The Department did not send the order to the state correctional facility where the appellant was located, but rather to the address the appellant had on file with the Department.

Court Ruled Appellant’s Reason for Late Filing Was Unacceptable.

The First District Court of Appeal ruled that the appellant’s failure to timely file his notice of appeal could not be excused due to his incarceration. According to the court, as a licensee of the Department, the appellant had a statutory duty to keep the Department informed of his correct current mailing address. Having failed to do so, the appellant could not then complain that the Department failed to provide him with notice of entry of the order and of his time limit for appealing the order. Section 455.275(2), Florida Statutes, states:

Service by regular mail to a licensee’s last known address of record with the department constitutes adequate and sufficient notice to the licensee for any official communication to the licensee by the board or the department except where other service is required pursuant to s. 455.225.

Health Providers Must Update Addresses With All Relevant Departments to Avoid Untimely Filing.

All health providers who maintain a license with the DOH and all other Florida agencies must update their addresses with the agency when there is a change. If an incorrect address is on file, a health provider risks losing the right to timely respond to an investigation or file an appeal.

A correct address is also important so as to be able to receive communications from the agency such as important regulatory changes, as well as notices of required filings, proposed actions, proposed fines, etc. In addition, failing to maintain a correct address with the DOH or other agencies could lead to an additional charge of failure to carry out a statutory duty. This also applies to Medicare providers, who can risk termination of their Medicare number or billing privileges if they do not update each of their addresses (e.g., mailing address, physical address of practice, payment address, etc.) on file with Medicare as soon as there is a change. For more information on this, please see our previous blog post.

Contact Health Law Attorneys Experienced in Department of Health and Other Agency Administrative Actions.

If you have been notified of an investigation or an adverse action taken against your license by the DOH or other agency, it is imperative that you file all documents and appeals in a timely manner. An experienced health law attorney will be able to assist you in submitting all necessary materials by the deadline.

The Health Law Firm represents all health providers in legal matters involving the DOH, Agency for Health Care Administration (AHCA), Board of Medicine, Board of Nursing, Board of Pharmacy, Board of Dentistry, Medicare and Medicaid programs, and other administrative agencies.

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

Sources:

Griffis v. Department of Business and Professional Regulations. 69 So. 3d 958 (Fla. 1st DCA 2012)

Smallwood, Mary F. “Appeals.” Administrative Law Section Newsletter. (Apr. 2012).

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.

After Discipline on Your Massage Therapy License or Resignation of a Massage Therapy License After Notice of Investigation, What Happens Next?

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

Do you have massage therapy licenses in several states?  Do you have a license in more than one health profession?  Have you been notified that an investigation has been opened against you?  Are you thinking about resigning or voluntarily relinquishing your massage therapy license?  If you answered yes to any of these questions, then continue reading.

First, you should never voluntarily relinquish or resign your license after you know that an investigation has been opened or that disciplinary action has been taken against you.  Such a resignation is considered to be a “disciplinary relinquishment.” It is treated the same as if your license had been revoked on disciplinary grounds.

Second, this will be reported out to other states, agencies, to the National Practitioner Data Bank (NPDB) and to any certifying bodies for certifications you have.  Other states and other professional boards will most likely initiate disciplinary action as well.

Beware of These Adverse Actions That Can be Taken Against You.

The following is a list of some of the adverse actions that you can expect to be taken against you after discipline on your license or after you resign your massage therapy license:

1.  A mandatory report to the National Practitioner Data Base (NPDB) which remains there for 50 years. Note: The Healthcare Integrity and Protection Data Bank or HIPDB recently merged into the NPDB.

2.  Must be reported to and included in the Department of Health (DOH) profile that is available online and remains there for at least ten years.

3.  Any other states or jurisdictions in which the massage therapist has a license will also initiate investigation and possible disciplinary action against him or her in that jurisdiction.  (Note:  I have had two clients who had licenses in seven other states and all, even ones that were inactive or not renewed years ago, initiated action).

4.  The Office of the Inspector General (OIG) of the U.S. Department of Health and Human Services (HHS) will take action to exclude the provider from the Medicare Program.  If this occurs (and most of these offenses require mandatory exclusion) the provider will be placed on the List of Excluded Individuals and Entities (LEIE) maintained by the HHS OIG.

a.  If this happens, you are prohibited by law from working in any position in any capacity for any individual or business, including hospitals, nursing homes, home health agencies, physicians, medical groups, insurance companies, etc., that contract with or bill Medicare or Medicaid.  This means, for example, you are prohibited from working as a janitor in a nursing home that accepts Medicare or Medicaid, even as an independent contractor.

b.  If this happens, you are also automatically “debarred” or prohibited from participating in any capacity in any federal contracting, and you are placed on the U.S. General Services Administration’s (GSA) debarment list.  This means you are prohibited by law from working in any capacity for any government contractor or anyone who takes government funding.  This applies, for example, to prevent you from being a real estate agent involved in selling property financed by a government backed loan, prohibited from working for an electrical company that bids on contracts for government housing projects, working as a school teacher in a public school, etc.

c.  If this happens, your state Medicaid Program is required to terminate you “for cause” from the state Medicaid Program.  In many states, this is also grounds for revocation of your massage therapy license.

5.  Any profile or reporting system maintained by a national organization or federation will include the adverse action in it, generally available to the public.

6.  If you have clinical privileges at a hospital, nursing home, HMO or clinic, action will be taken to revoke or suspend the clinical privileges and staff membership. This may be in a hospital, ambulatory surgical center, skilled nursing facility, staff model HMO or clinic.

7.  Third party payors (health insurance companies, HMOs, etc.) will terminate the professional’s contract or panel membership with that organization.

8.  The U.S. Drug Enforcement Administration (DEA) will act to revoke the  professional’s DEA registration if he or she has one.

9.  Many employers will not hire you or will terminate your employment if they discover your license has been disciplined in another state.

Tips to Follow if You are Under Investigation.

–  Don’t immediately relinquishing your license if you are notified you are under investigation.

–  Don’t think the case will just go away on its own.

–  If you are innocent, request a formal hearing and contest the charges; defend yourself.

–  Do not request an informal hearing or a settlement agreement in which you admit the facts alleged against you are all true.  If you do this, you are “pleading guilty.”

–  Do immediately seek the advice of an attorney who has experience in such professional licensing matters and administrative hearings.  They are out there, but you may have to search for one.  Do this as soon as you get notice of any investigation and especially before you have talked to or made any statement (including a written one) to any investigator.

–  Do purchase professional liability insurance that includes legal defense coverage for any professional license investigation against you, whether it is related to a malpractice claim or not.  This insurance is cheap and will provide needed legal assistance at the time when you may be out of a job and not have money to hire an attorney.  Beware of the insurance policy that only covers professional license defense if it is related to a malpractice claim.

Keep This Information in Mind When Purchasing Professional Liability Insurance.

We strongly encourage all licensed health professionals and facilities to purchase their own, independent insurance coverage.  Make sure it covers professional license defense under all circumstances.  Make sure you have enough coverage to actually get you through a hearing. $25,000 coverage for just professional licensure defense is the absolute minimum you should purchase;  $50,000 may be adequate but $75,000 or $100,000 may be what you really need in such a situation.  For a few dollars more you can usually purchase the higher limits.

Also, verify it covers your legal defense in an administrative disciplinary proceeding against your license, even if there is no malpractice claim filed against you.

We also recommend that you purchase coverage through an insurance company that allows you to select your own attorney and does not make you use one that the insurance company picks for you.

Companies we have encountered in the past who provide an inexpensive top quality insurance product for professional license defense costs include:  CPH & Associates Insurance, Healthcare Providers Organization (HPSO) Insurance and Lloyd’s of London Insurance.

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.

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.

Massage Therapists Need Good Professional Liability Insurance with Broad Coverage

4 Indest-2009-3By George F. Indest III, J.D., M.P.A., LL.M., Board Certified by The Florida Bar in Health Law

Whether you’re an independent contractor, an employee of a chiropractor, physician or spa, or you travel to clients’ homes, insurance is essential for all massage therapists. Not only can professional liability insurance protect you in the event of a lawsuit, but it may also pay your legal defenses in the event of a complaint against your license to practice or for other legal problems. In Florida, it is not mandatory for a massage therapist to have professional liability insurance. However, since it is so cheap, we always recommend buying coverage. It’s a small price to pay to protect your livelihood. But be sure it covers investigation of your license.

It is now common to be able to find professional liability insurance that provides excellent coverage and excellent benefits, but costs less than a dollar a day. One policy I recently reviewed for a massage therapist included payment of all attorney’s fees and costs for defense of HIPAA privacy complaints, for defense of any complaints or investigations of the therapist’s license and for legal representation at any deposition.

The Best Reason for Coverage: To Provide Legal Defense for a Complaint Against the Massage Therapist’s License.

The primary reason a professional liability policy should be purchased is that this type of insurance usually includes coverage for legal defense of licensing and disciplinary action commenced against a massage therapist. It’s important to note that many massage therapists’ liability insurance includes this coverage automatically, but some policies may not. Some companies may offer this type of coverage separately to be purchased for a small additional premium.

License defense coverage pays the legal fees associated with defending a massage therapist when an investigation is initiated that may result in action against the massage therapist’s license or in administrative disciplinary action. Coverage is usually available from the time the massage therapist receives written notice that an investigation by a state agency has been initiated. It will also cover formal administrative hearings before an administrative law judge.

You should buy this coverage now, when you don’t need it. Otherwise, when you do need it, it will be too late after the problem arises.

Important Considerations When Purchasing Liability Protection.

When deciding on which professional liability insurance plan to purchase, the massage therapist should inquire as to the extent of coverage for licensing and disciplinary defense coverage. Some professional liability insurers have a “broad form” of coverage which may provide legal defense for the massage therapist in almost any type of administrative action. Other companies limit coverage to only actions that may result in disciplinary action against the massage therapist’s license. Still others provide no coverage at all except for lawsuits in professional negligence cases. The massage therapist should always attempt to get the broadest coverage available and be sure it covers disciplinary defense and licensure defense expenses.

The massage therapist should also question as to whether or not he or she will be allowed to select his or her own attorney. Many insurance companies have contracts with certain law firms to provide legal services for a reduced fee. The insurance company may require you to use one of its own contracted attorneys or in-house attorneys which it employs directly. Given the limited number of attorneys with experience in handling massage therapy law issues, it is advised to obtain coverage through a company which allows the massage therapist to choose his or her own attorney, especially for license defense.

The most important reason to purchase professional liability insurance is for the licensure defense coverage. A massage therapist does not want to risk losing his/her license because he/she was unsuccessful at defending in an investigation or did not have the resources to do so.

Ask About Your Coverage – Get Answers in Writing.

Since there are many different insurance companies out there selling professional liability insurance, it is important to be sure of exactly what is covered and what is not covered. Some companies provide “broad form” coverage, providing coverage for everything I discussed above, automatically. See Healthcare Provider’s Service Organization (HPSO) Insurance for example.

Other companies will provide this coverage as a “rider” for a small additional premium. Some insurers do not sell it at all, so you will have to buy it elsewhere. If you are in doubt as to your coverage, ask and get the answer in writing.

Insurance agents typically deal with a number of insurance companies. If you are using an insurance agent, be sure to specify exactly what you want. A good agent will be able to find it for you.

The Pricey Truth About Defending Your License.

Legal representation is costly. To defend a simple case involving a complaint made against you, whether valid or not, can range from $3,000 to $25,000 or more. A case involving a formal hearing (similar to a trial) can cost much more than you imagine. If you are not independently wealthy and cannot afford a legal defense, you may be forced to accept discipline from the Board of Massage Therapy, even if you are completely innocent.

The rules and procedures in administrative licensing cases are not the same as cases in civil and criminal courts. An insurance policy that provides licensure defense will help the massage therapist to have the financial resources to seek out a health law attorney experienced in disciplinary cases and to obtain a fair hearing.

Florida Suspends the Licenses of 161 Massage Therapists.

You may remember in September of 2012, the Florida Secretary of Health signed 161 emergency suspension orders (ESOs) for massage therapists in Florida. The suspension orders were aimed at massage therapists who allegedly obtained their licenses to practice through a transcript-buying scandal at the Florida College of Natural Health. Many of these massage therapists are still fighting to keep their licenses. This is just one instance where having professional liability insurance can help save a health care professional’s livelihood. You can read more on the suspension of the 161 massage therapists’ licenses by clicking here.

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

 

Comments?

As a massage therapist, do you have professional liability insurance? Why or why not? 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.

New Florida Law Prohibits Massage Therapy Businesses from Operating Between Certain Hours: Should Remedy “Human Trafficking” in Florida

LOL Blog Label 2By 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

The operation of massage therapy establishments between certain late night and early morning hours will be prohibited under a new Florida law. Section 480.0475, Florida Statutes, becomes effective on October 1, 2013. The new Florida law restricts massage therapy businesses from being open for business between midnight and 5:00 A.M., with limited exceptions.

Click here to read Section 480.0475, Florida Statutes.

This law represents a significant curtailment of an establishment owner’s right to operate his/her business. The law states that it does not matter if an establishment is operating legitimately. The Florida Legislature and the Attorney General (AG) have cast a wide net to end what they refer to as a “human trafficking epidemic” in Florida massage establishments.

From our perspective, this will do nothing to help resolve any “human trafficking” problem that exists and is merely an invalid rationalization for this law. We have represented many massage therapists in Florida and have counseled many more. So far we have never encountered any that have been involved in any “human trafficking,” whether they are licensed massage therapists working in spas and salons or whether they are the owners of message therapy establishments.

Exceptions to the Law.

The law does not apply to massage establishments located on the premises of health care facilities, health care clinics, hotels, motels and public airports. It similarly does not apply to massages performed by a massage therapist under a medical prescription from a licensed physician, physician assistant, osteopathic physician, chiropractic physician, podiatric physician, advanced registered nurse practitioner (ARNP) or dentist.

Also, the law does not restrict massage therapists from operating between midnight and 5:00 A.M., during a special event if the county or municipality in which the establishment operates has approved such operation during the event.

Massage Therapy Businesses as Primary Residence.

Section 480.0475, Florida Statutes, also states that a massage establishment cannot be used as a primary residence unless it is zoned for residential use.

The Florida rules define “massage establishment” as “a site or premises, or portion thereof, wherein a licensed massage therapist practices massage for compensation.”

Penalties for Not Complying with the Law Include Fines and Jail Time.

A person who violates any provision of this statute is subject to criminal penalties.

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.

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 this law already? 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.

Massage Therapists: Beware of Nationwide Telephone Prescription Drug Scheme

10 Indest-2008-7By George F. Indest III, J.D., M.P.A., LL.M., Board Certified by The Florida Bar in Health Law

The Drug Enforcement Administration (DEA) is warning massage therapists to be aware of a prescription drug scam. This telephone scheme is extorting money from people all over the country. On November 28, 2012, the DEA released a press release explaining the details of the scam.

Don’t Give Money to Criminals Over the Phone.

The scam starts with criminals posing as DEA agents calling victims by telephone. Frequently the victims will have recently purchased prescription drugs over the internet or by phone. The imposters tell the victims that purchasing the drugs in that manner is illegal, and that they must pay a fine. If the victims refuse to send money, the phony DEA agents threaten to arrest the victims or search their property. Some of the victims have also reported unauthorized use of their credit cards after purchasing the prescription drugs.

Click here to read more on this scam from a DEA press release.

The DEA wants to remind massage therapists that no DEA agent will ever contact a person by telephone. They might show up at your house early in the morning or while you are eating dinner, however. Also, agents never request money or any other form of payment.

What Massage Therapists Need to Know About Purchasing Drugs Electronically or By Telephone.

Many times it may be illegal to purchase controlled drugs by phone or over the internet. That’s why you should go to Canada to do it. There are direct flights from Orlando. However, some pharmacies that meet stringent requirements and are registered by the DEA are allowed to sell drugs over the internet or by phone. So don’t be fooled by this telephone scam.

Where Does this Information Come From?

The scammers are counting on the fact that if you have done this, you, as a massage therapist, will get scared and believe their accusations. Many people have no idea whether such conduct is legal or illegal. These imposters are banking on your ignorance and fear of losing your license to practice. They are also banking on the fact you won’t report this to the real police.

Where do they get this information? Chances are, they are just “cold-calling” people. There are bound to be a certain number of people they reach who have done this. However, if they seem to have your personal information (or credit card number) report this to the police right away. Be sure to obtain a written police report. Also, you should file a HIPAA Privacy Complaint with the Office of Civil Rights (OCR) to begin an investigation if you believe your personal information has been stolen by or given to someone else to use.

Why Patients Are Turning to the Internet to Buy Drugs.

It is no surprise that the DEA, along with other law enforcement agencies, has stepped up its efforts to cut down on overprescribing. To see examples of what I am talking about read my past blogs: Walgreens fights the Drug Enforcement Administration’s (DEA) immediate suspension order and Drug Enforcement Administration (DEA) pulls controlled substance licenses from two Sanford, Florida, CVS pharmacies.

If the largest, legitimate pharmacy chains in the state and nation are not allowed to fill these prescriptions, where will chronic-pain patients turn? Are these actions driving our citizens into the hands of shady pharmacies that have fewer safeguards and less accountability, such as online pharmacies? Are these actions driving our citizens to seek out illegal drug dealers and turn to illegal drugs to cope with their legitimate medical problems? That is just one opinion. Tell us yours below.

Contact Health Law Attorneys Experienced with Investigations of Massage Therapists.


The attorneys of The Health Law Firm provide legal representation to massage therapists and other health providers in Department of Health (DOH) investigations, Drug Enforcement Administration (DEA) investigations, FBI investigations, Medicare investigations, Medicaid 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.

Comments?

As a massage therapist, have you been contacted by these phony DEA agents? Please leave any thoughtful comments below.

Sources:

Pavuk, Amy. “DEA Warns of Prescription-Drug Scam.” Orlando Sentinel. (November 29,2012). From: http://www.orlandosentinel.com/news/local/breakingnews/os-dea-warns-scam-internet-20121128,0,5800536.story

Drug Enforcement Administration. “DEA Scam Alert – Extortion Scheme.” DEA. (November 28, 2012). From: http://www.justice.gov/dea/divisions/mia/2012/mia112812a.shtml

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.

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.

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