By George F. Indest III, J.D., M.P.A., LL.M., Board Certified by The Florida Bar in Health Law
The attorneys of The Health Law Firm represent Licensed Massage Therapists (LMTs) and Massage Therapy Assistants in a number of different legal matters. We appear before the Board of Massage Therapy. We represent massage therapists and massage therapy assistants in disciplinary matters, in credential matters, in licensing matters and in defending against malpractice claims and suits.
If you receive a letter from the Department of Health (DOH) notifying you that you are being investigated, this is a very serious matter. Get an attorney who is experienced in such matters. If you do receive a letter from the DOH, finding correct information regarding the next steps in the process is vital. Read on the learn more, and hopefully help you fight to keep your license.
Here is what you didn’t know:
1. You are not required to make any statement to the investigator, oral or written, and you should not do so.
2. You do not have to send the investigator a copy of your resume, and you should not do so.
3. You have a Fifth Amendment right to refuse to say or do anything that might incriminate yourself. This applies to administrative investigations.
4. If you have malpractice insurance (professional liability insurance) it may pay for your legal defense in an investigation. Use it!
5. You have the right to obtain a copy of the investigation after it is completed and to file a rebuttal to it.
Other things about this that you probably don’t know:
1. You should never agree to voluntarily relinquish your license if any investigation is pending. This will be treated the same as a disciplinary revocation and the consequences will be severe. (see below.)
2. You should never request an informal hearing. An informal hearing means you are admitting all of the allegations against you are true (pleading guilty), and you are not disputing them.
3. If disciplinary action is taken against you (including a “voluntary” relinquishment) this will be reported to your national certification board and it will most probably revoke your national certification.
4. If you have licenses in other states or in other health professions, this will be reported and they will commence investigations and disciplinary actions.
5. It will be reported to the National Practitioner Data Bank (NPDB) and the Office of the Inspector General (OIG). The OIG will then commence action to exclude you from the Medicare Program. If excluded, it is likely that you will not be able to work in health care or for any government contractor in any capacity.
Our attorneys have been very successful in representing massage therapists and massage therapy assistants. We may be able to have your case dismissed by the Probable Cause Panel of the Board. If not, we may be able to obtain a favorable result for you in a formal administrative hearing (like a trial) where the government has to prove the case against you and you are able to defend yourself.
You spent a great deal of time and money to get your professional education and your profession licenses. Don’t give it all up without getting advice from experienced attorneys.
Information Regarding Insurance Coverage.
Our recommendation is that every massage therapist and massage therapy assistant carry professional liability insurance that includes professional license defense coverage (sometimes called disciplinary defense, license defense, administrative hearing coverage or broad coverage). Most often this type of insurance coverage is included in most professional liability policies; however, if it is not, it can often be added as a rider to the insurance policy for a slight additional charge. You should be sure that your coverage for professional license defense is at least $25,000, and we recommend that you increase it to $50,000. You should also request and obtain “broad form coverage” that includes coverage of your legal fees for defense of all administrative or governmental proceedings, including Medicare audits, Medicaid audits, EEOC complaints and other types of governmental actions that could be initiated against you.
If you are required to defend yourself at a formal administrative hearing, this is similar to a medical malpractice trial in civil court. Attorney’s fees, court reporter costs, expert witness fees and other costs and fees can rapidly mount up to the point where most massage therapists and massage therapy assistants could not afford to defend themselves. If you are then required to appeal an adverse outcome, the appeal alone could cost $10,000.
Don’t wait to purchase this type of insurance until there is complaint filed against you, because then it is too late to purchase it. Complaints can be initiated against you based solely on anonymous calls to the Department of Health Hotline, newspaper reports, prior arrest reports, disgruntled patients, disgruntled insurance companies, competitors or other sources. Once and investigation is initiated, you should obtain legal representation right away. Without insurance, you probably will not be able to afford to hire a competent, experienced health lawyer to defend you. Always go to a board certified health lawyer experienced in representing massage therapists and massage therapy assistants.
For a chart depicting the Florida Department of Health investigation process, click here.
Contact Health Law Attorneys Experienced in the Representation of Massage Therapists.
The attorneys of The Health Law Firm provide legal representation to massage therapists in Department of Health (DOH) investigations, licensing matters and other types of investigations of health professionals and providers.
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 or massage therapy assistant, how much of this blog did you already know? What are your biggest concerns as a health care professional? 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. http://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
Hi There Thehealthlawfirm,
Thanks for your thoughts, Grrr! Lately on Houston’s Craigslist, there have been hordes of unlicensed people calling themselves therapists, and prostitutes/escorts posting under the therapeutic services category. People like this make real licensed massage therapists look bad. They flag real LMTs’ ads, and make the entire massage therapy industry look like a virtual harem. Is there anything that can be done??
BTW great blogpost