Deadline Looming: New Fingerprint Requirement for Florida Massage Therapists

By Lance O. Leider, J.D., The Health Law Firm

You can run, but you can’t hide.

During the 2014 Legislative Session CS/HB 1065 was passed. This law requires all new applicants and existing massage therapists and establishment owners to submit digital fingerprints. The law has been in effect since July 1, 2014 for new licenses. However, the deadline to submit fingerprints for existing licenses is January 31, 2015.

Click here to read CS/HB 1065.

Law Details.

According to the law, the following individuals must undergo a criminal background screening prior to January 31, 2015:

–    All massage therapists licensed in Florida prior to July 1, 2014.

–    Any person with an ownership interest in a massage establishment licensed in
Florida prior to July 1, 2014.

–    If the massage establishment is owned by a corporation that has more than
$250,000 of business assets in Florida, the owner, officer or individual directly
involved in the management of the establishment will be required to submit to
background screenings.

What’s a Digital Fingerprint?

If you haven’t already, massage therapists must locate a Florida Department of Law Enforcement (FDLE)-approved LiveScan Provider. LiveScan is a digital fingerprint used throughout the country by law enforcement, state agencies, and employers. The LiveScan provider will electronically send your fingerprint to the FDLE.

The cost for submitting a digital fingerprint varies by location, as does the information an applicant needs to bring with them.

It’s important to remember, if you include a photo with a LiveScan fingerprint, it will stay in the Florida Department of Health’s (DOH) database. However, if there is no photo included, then you will need to resend your finger print every two years.

Exemptions with New Requirement.

Licensed physicians, osteopathic physicians or chiropractors, who employ a licensed massage therapist to perform massages on the physician’s patients at the physician’s practice, are exempt from the background screening requirements.

Purpose of the New Law.

This law is new to massage therapists, not to the field of healthcare. Many other healthcare providers in Florida, including doctors, dentists, chiropractors, and nurses, have been required to submit digital fingerprints for years.

If a qualifying felony offense does show up on the background screening, the DOH will issue an emergency suspension order (ESO), suspending the license of that massage therapist or massage establishment. The DOH will also deny the application or renewal of any massage therapist or massage establishment with certain prior felony conviction. The purpose of the fingerprint-based background checks are to eliminate people with past felony convictions from obtaining or keeping their massage therapy licenses. Be mindful that any and all prior convictions will show up on this background check. This means, that even if you have a very old criminal history, it can potentially result in an investigation by the Board and possible disqualification from licensure. If you have questions regarding your massage therapy license, contact an experienced healthcare attorney.

Comments?

Did you know about this new law? Have you sent in your digital fingerprint yet? Please leave any thoughtful comments below.

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.

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 © 1996-2014 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.

Florida Suspends the Licenses of 81 Massage Therapists

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

According to a number of sources, state authorities have announced the suspension of more than 80 massage therapists’ licenses, who appear to have fraudulently obtained their licenses with the help of an employee with the Florida College of Natural Health. On September 19, 2012, 81 emergency suspension orders (ESOs) were signed, suspending the licenses of massage therapists who are part of ongoing investigations.

To see the entire press release from the Florida governor’s office, click here.

Investigation Found More Than 200 Therapists Obtained Their Licenses Fraudulently.

According to the Tampa Bay Times, earlier this year the Florida Department of Health (DOH), Clearwater Human Trafficking Task Force and the South Florida Human Trafficking Task Force began an investigation into several massage therapy businesses. The investigation turned up more than 200 massage therapists who appeared to have obtained their massage therapy licenses by fraud.

Florida Massage School Employee Helped Obtain the Fraudulent Licenses.

It is believed the 200 people did not enroll in massage therapy school, but received transcripts from the Florida College of Natural Health showing they completed training. The Tampa Bay Times article states that these people allegedly paid between $10,000 and $15,000 to an individual who worked at a Florida massage school in exchange for transcripts.

The transcripts were then used to get massage licenses from the DOH.

The governor has now ordered a seven-day review of massage schools to ensure they are complying with licensure requirements and regulations. Authorities believe more suspensions will likely be issued.

Massage Therapist Suspensions Thought to Be Tied to Human Trafficking.

According to the Tampa Bay Times, in a news conference authorities said the emergency suspension orders were, in part, an effort to target Florida’s human trafficking problem. Authorities said massage parlors are a typical place for finding victims of human trafficking.

Authorities also said they do not know if these 81 fake massage therapists are victims of human trafficking. It is clear, however, they are not operating legally.

Click here to read the entire article from the Tampa Bay Times.

Reference Articles for Licensed Massage Therapists.

On our website we provide helpful information for licensed massage therapists. To read about the consequences of having your massage therapy license revoked (or relinquishing it after a notice of an investigation), click here. To see the 25 biggest mistakes made by massage therapists after being notified of a DOH complaint, click here. You can also click here to read our advice for preparing for an informal hearing before the Florida Board of Massage Therapy.

Routine Legal Advice Given to Massage Therapists.

We routinely advise massage therapists and all other licensed health professionals with whom we have a legal consultation:

1. Do NOT speak with any Department of Health (DOH) investigator until you have talked to an experienced health law attorney.
2. Do not make any written statement or respond to any letters from the DOH until you have talked to an experienced health attorney.
3. Read everything you receive and be sure to file election of rights (EOR) statements by the deadline, but only after consulting with an experienced health lawyer.
4. You should not attempt to defend yourself without an attorney.
5. Attempting to talk your way out of the situation or explain your side of it will only hurt you.
6. Many types of massage therapist insurance will actually pay for an attorney to defend you in this type of situation.

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.

Sources:

Department of Health. “Governor Rick Scott Joins Law Enforcement and Anti-Human Trafficking Groups to Suspend Licenses of 81 Massage Therapists.” DOH News Room. (September 19, 2012). From: http://newsroom.doh.state.fl.us/wp-content/uploads/newsroom/2011/08/91912-EOGMassage-Therapy-Licenses.pdf

Velde, Jessica. “Florida Suspends 81 Massage Therapists’ Licenses.” Tampa Bay Times. (September 19, 2012). From: http://www.tampabay.com/news/publicsafety/florida-suspends-81-massage-therapists-licenses/1252355#

Turner, Jim. “Florida Suspends 81 Massage Therapists in Human Trafficking Probe.” Sunshine State News. (September 19, 2012). From: http://www.sunshinestatenews.com/blog/florida-suspends-81-massage-therapists-human-trafficking-probe

About the Authors: Joanne Kenna, J.D., R.N., 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.

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.

Consequences of Having Your Massage Therapy License Revoked (Or Relinquishing it after Notice of an Investigation)

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

Many massage therapists, when confronted with an investigation against their license, do not fight the charges, sometimes they decide it is cheaper and easier just to give up their license. Either choice is likely to be a mistake.

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 therapists’ license.

Massage Therapists Often Go on to Obtain Licenses in Other Health Specialties.

A massage therapist often has to spend tens of thousands of dollars on school tuition and sacrifice a year or more of their lives to meet the basic criteria for licensing. In many cases this is merely a stepping stone for a later degree and license in another healthcare specialty, such as physical therapy, nursing, acupuncture, or chiropractic medicine.

Your Professional Reputation and Your Personal Reputation Are Your Greatest Assets.

One of the maxims that the Romans took as truth was: “A good reputation is more valuable than money,” (attributed to Publilius Syrus approximately 100 B.C.). Socrates wrote in approximately 400 B.C.: “Regard your good name as the richest jewel you can possibly be possessed of.”

However, despite the fact that you may have worked hard, sacrificed and paid a fortune for an education and training in massage therapy, many are willing to sacrifice their personal reputation rather than paying a few thousand dollars to fight unjust charges against them. What they do not realize is the permanent black mark that will be placed on their record and the long term devastating consequences of any such action.

Most Massage Therapists Do Not Defend Themselves When Confronted with Charges.

It is my opinion, based on what I have seen at Florida Board of Massage Therapy meetings and reviewing Florida Board of Massage Therapy meeting minutes, very few massage therapists, when confronted with an investigation or charges, hire an attorney to defend them. This may be because they do not have the financial resources or because they underestimate the harm that will be caused to their personal or professional reputations.

Regardless, in my personal opinion and experience:

1. Few massage therapists return their election of rights (EOR) forms on time and therefore, a default is entered against them.

2. Few massage therapists return their election of rights (EOR) forms to state they are contesting the facts and desire a formal hearing to contest the charges against them.

3. Few massage therapists even bother to show up at informal hearings involving their licenses.

4. When they do, they show up at a hearing with a spouse or friend to represent them instead of an experienced attorney familiar with such matters (Q: If you needed brain surgery, would you have it performed by a spouse or friend instead of an experienced neurosurgeon?)

5. If they do retain an attorney to advise and represent them, they either go with the cheapest one they can find or go with one who has no experience at all before the Board of Massage Therapy. (Q: If you needed brain surgery, would you pay your family practice physician to perform it?)

Your Best Line of Defense: Purchase Insurance with Professional License Defense Coverage.

Often physicians and others concerned about liability issues ask our advice on asset protection in case they are sued. We advise them that their best way of protecting their assets is to purchase good insurance that will pay for a legal defense that protects them against unjust law suit. The same principle applies to massage therapists; except that massage therapy insurance is much, much cheaper, and the major liability that a massage therapist will face is usually from a complaint against his or her license.

If you purchase massage therapy liability insurance, you must make sure that it covers defense expenses of a complaint filed against your license. Many such policies do not. Additionally, you should be sure that it provides at least $25,000 in coverage for such matters. This should be sufficient to provide adequate coverage in the event a fully contested formal hearing is required to defend you.

We have seen many policies and they are as different as night and day in this coverage. When purchasing a professional liability policy, always ask about such coverage. Get the coverage stated in writing. To date, the only company we have experienced which is providing such coverage for massage therapists, and at an incredibly low price, is Healthcare Providers Service Organization (HPSO). Compare this with whatever you have now. If you know of others that provide this coverage, I would like to hear from you.

It has been my personal experience that a massage therapist will be 30 or 40 times more likely to need licensure defense coverage as ever to need defense against a civil lawsuit.

Additional Consequences of Discipline on Your Massage Therapy License.

There are many, many additional adverse consequences that you will experience if you receive discipline on (especially revocation of) your massage therapy license. First and foremost, this is on your record forever; it never comes off and cannot be expunged. Additionally, it will be reported to the National Practitioner Data Bank (NPDB) and available anywhere you go in the future in any state, to any licensing board. There are many others. I will detail these in a future blog.

Voluntary Relinquishment after Investigation Has Started Treated as Revocation, the “Death Sentence.”

Many massage therapists believe that the easy and cheap way out if a complaint is filed and an investigation is opened is to resign their license. This is treated the same as a disciplinary revocation and is reported that way. You should never expect to work in health care again or to have a health professional license in any other health specialty or in any other state.

Burden of Proof Is on the State to Prove the Allegations Against You; You Don’t Have to Prove Anything.

If the state brings charges against your massage therapy license, the burden of proof is on the state, just as in a criminal investigation. You do not have to prove anything, and in most cases, you should never make any statement to an investigator or attorney representing the state department of health; these can only be used against you to prove the state’s case against you.

You can remain silent, not say anything and not produce any evidence, and the state may not have enough witnesses or evidence to ever prove a case against you.

Most massage therapists, their non-lawyer representatives and their inexperienced lawyer representatives make a very big mistake. They advise the massage therapist to be interviewed or to make a statement “explaining themselves.” There is no criminal defense attorney worth his or her salt that would ever advise a criminal defendant to do this. Why then must they take leave of their senses and advise a health professional to do this in a “quasi-criminal” or “quasi-penal” investigation? This is almost always very bad advice.

Then, request a formal hearing and contest the facts. Don’t admit to them!

Conclusion: Defend Your Reputation and Your License.

In conclusion, take precautions and defend your professional livelihood, your professional reputation and your professional license.

This is Florida. We have hurricanes. If you have a house you own, you purchase insurance on it to protect yourself in the event of a hurricane.

Without your license, you will not have an income and you will not be able to even make house payments. Why wouldn’t you purchase professional insurance that would pay for a defense in the event of that worst case scenario, an investigation of your license. Why wouldn’t you defend yourself to the max if this happened? This will probably feel worse to you and have worse long-term implications to you financially than any hurricane.

Stay tuned to this blog for more.
Don’t Wait Until It’s 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.

 

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