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Question: Is Exposure to COVID-19 For Nurses and Other Healthcare Workers, Causing Illness, Disability, or Death, Considered an Employment-Related Injury Under Workers’ Comp Coverage?

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

In answering the question posed in the title of this blog, first, it should be noted that the World Health Organization (WHO) classifies COVID-19 as an “occupational disease.” (Reference: World Health Organization, “Coronavirus Disease (COVID-19) Outbreak: Rights, Roles and Responsibilities Of Health Workers. . . .”)

Click here to view the classification by the WHO on our website.

Most state workers’ compensation laws cover the worker for occupational diseases if the worker acquires it during the course and scope of their employment. For example, Section 440.151(2), Florida Statutes, states:

Whenever used in this section the term “occupational disease” shall be construed to mean only a disease which is due to causes and conditions which are characteristic of and peculiar to a particular trade, occupation, process, or employment, and to exclude all ordinary diseases of life to which the general public is exposed, unless the incidence of the disease is substantially higher in the particular trade, occupation, process, or employment than for the general public. “Occupational disease” means only a disease for which there are epidemiological studies showing that exposure to the specific substance involved, at the levels to which the employee was exposed, may cause the precise disease sustained by the employee.

Section 440.151(2), Florida Statutes, (emphasis added). Many other states have similar requirements to those of Florida.

Healthcare workers are at the front line of any outbreak response and as such are exposed to hazards that put them at an increased risk of infection with the COVID-19 virus. Therefore, as COVID-19 meets the criteria as an “occupational disease.”

Moreover, Section 440.151(1)(a), Florida Statutes, states:

Where the employer and employee are subject to the provisions of the Workers’ Compensation Law, the disablement or death of an employee resulting from an occupational disease as hereinafter defined shall be treated as the happening of an injury by accident, notwithstanding any other provisions of this chapter, and the employee or, in case of death, the employee’s dependents shall be entitled to compensation as provided by this chapter, except as hereinafter otherwise provided; and the practice and procedure prescribed by this chapter shall apply to all proceedings under this section, except as hereinafter otherwise provided. Provided, however, that in no case shall an employer be liable for compensation under the provisions of this section unless such disease has resulted from the nature of the employment in which the employee was engaged under such employer, was actually contracted while so engaged, and the nature of the employment was the major contributing cause of the disease. Major contributing cause must be shown by medical evidence only, as demonstrated by physical examination findings and diagnostic testing. “Nature of the employment” means that in the occupation in which the employee was so engaged there is attached a particular hazard of such disease that distinguishes it from the usual run of occupations, or the incidence of such disease is substantially higher in the occupation in which the employee was so engaged than in the usual run of occupations. In claims for death under s. 440.16, death must occur within 350 weeks after last exposure. Both causation and sufficient exposure to a specific harmful substance shown to be present in the workplace to support causation shall be proven by clear and convincing evidence.

Section 440.151(1)(a), Florida Statutes.

It is important to note that COVID 19 or any other communicable disease (TB, H1N1, etc.): The employee has to test positive for the disease/contagion and it must be determined with a reasonable amount of certainty that their exposure to the virus occurred in the workplace and was not community-acquired.

In addition, per Section 440.151(1)(c), Florida Statutes states:

Where an occupational disease is aggravated by any other disease or infirmity, not itself compensable, or where disability or death from any other cause, not itself compensable, is aggravated, prolonged, accelerated or in anywise contributed to by an occupational disease, the compensation shall be payable only if the occupational disease is the major contributing cause of the injury. Any compensation shall be reduced and limited to such proportion only of the compensation that would be payable if the occupational disease were the sole cause of the disability or death as such occupational disease, as a causative factor, bears to all the causes of such disability or death, such reduction in compensation to be effected by reducing the number of weekly or monthly payments or the amounts of such payments, as under the circumstances of the particular case may be for the best interest of the claimant or claimants. Major contributing cause must be demonstrated by medical evidence based on physical examination findings and diagnostic testing.

Section 440.151(1)(c), Florida Statutes, (emphasis added).

With regard to emergency medical technicians (EMTs) or paramedics Section 440.09(3), Florida Statutes, states:

If an emergency medical technician or paramedic is appointed or employed full time by a municipality, the state, or any political subdivision, is certified under chapter 401.23, in an emergency situation in this state, any such activities would be considered to be within the course of his or her employment and an emergency medical technician or paramedic and covered by the employer’s jurisdiction or area of responsibility, such activities are considered to be within the course of employment. The provisions of this subsection do not apply if the emergency medical technician or paramedic is performing activities for which he or she is paid by another employer of contractor.

Section 440.09(3), Florida Statutes (emphasis added).

Workers Compensation Benefits for Healthcare Professionals.

As of March 26, 2020, Florida has not issued any order or legislation explicitly stating that healthcare professionals exposed to COVID-19 will be entitled to Workers Compensation benefits.

By way of example, In the City of Phila. v. Workers’ Comp. Appeal Bd. (Sites), 889 A.2d 129 (Pa. Commw. Ct. 2005), a claimant was successful in proving that his hepatitis C was caused by his exposure to blood that occurred while working as a firefighter and emergency medical technician (EMT). Similar to COVID-19, hepatitis C was also classified as a compensable “occupational disease.” Therefore, it is likely that a healthcare professional’s exposure to COVID-19 would result in viable workers’ compensation claim.

Federal workers’ compensation laws are similar to those quoted above. Therefore, federal health care providers and those working in federal facilities will also most probably be entitled to federal employment compensation (FECA) benefits under similar situations.

We want to emphasize that this is merely our preliminary opinion based on limited analysis and research. It is provided for informational purposes only. It does not constitute the provision of legal advice. Each state has different workers’ compensation laws and different case law, as does the federal government. Each individual set of circumstances may be different. Contact your local workers’ compensation plaintiff’s (claimant’s) attorney for advice and representation in your individual case.

For more information and more examples of employment compensation benefit cases for health care professionals, click here.

Contact Health Law Attorneys Experienced in Representing Health Care Professionals and Providers.

At the Health Law Firm, we provide legal services for all health care providers and professionals. This includes physicians, nurses, dentists, psychologists, psychiatrists, mental health counselors, Durable Medical Equipment suppliers, medical students and interns, hospitals, ambulatory surgical centers, pain management clinics, nursing homes, and any other healthcare provider. It also includes medical students, resident physicians, and fellows, as well as medical student professors and clinical staff. We represent facilities, individuals, groups, and institutions in contracts, sales, mergers, and acquisitions. The lawyers of The Health Law Firm are experienced in complex litigation and both formal and informal administrative hearings. We also represent physicians accused of wrongdoing, in patient complaints, and in Department of Health investigations.

To contact The Health Law Firm, please call (407) 331-6620 and visit our website at www.ThehealthLawFirm.com.

About the Authors: Amanda I. Forbes, practices health law with The Health Law Firm in its Altamonte Springs, Florida, office. 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 Orlando, Florida, area. www.TheHealthLawFirm.com. The Health Law Firm, 1101 Douglas Ave. Suite 1000, Altamonte Springs, FL 32714, Phone: (407) 331-6620.

“The Health Law Firm” is a registered fictitious business name of and a registered service mark of The Health Law Firm, P.A., a Florida professional service corporation, since 1999.
Copyright © 2020 The Health Law Firm. All rights reserved.

By The Health Law Firm|2024-03-14T10:00:00-04:00May 7, 2020|Categories: Medical Education Law Blog|Tags: administrative complaint, administrative law, Department of Health (DOH), Florida health law attorney, health care fraud defense attorney, legal representation for health care professionals, licensure defense attorney|Comments Off

Will a Death from COVID-19 be Considered “Accidental Death” for Life Insurance Policies or a Death from “Accidental Causes?”

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

Almost all life insurance policies, including term policies, pay a “double indemnity,” that is, double the limits of coverage if a death occurs from “accidental causes” as opposed to “natural causes.” A question arises, given the COVID-19 pandemic, of whether a death caused by the novel corona versus would be considered a natural death or an accidental death. Fortunately, there is some guidance on this issue.

One reason it is important to distinguish between “accidental death” and “natural death” is that:

There is no pandemic exclusion for life insurance. General life insurance covers pandemics, assuming you were truthful about your travel plans and exposure to illness during the application process. . . . . An accidental death & dismemberment policy is more limited and covers deaths only when they’re accidental. It generally doesn’t [usually] cover deaths caused by illness and disease.

Nat’l Ass’n of Ins. Comm’rs, COVID-19 & Ins. (2020), https://content.naic.org/sites/default/files/inline-files/Insurance%20Brief%20-%20Covid-19%20and%20Insurance.pdf. (Emphasis added).

Definition of “Accidental Death”

According to Black’s Law Dictionary, an “accidental death” is defined as: “A death that results from an unusual event, one that was not voluntary, intended, expected, or foreseeable.” Accidental Death, Black’s Law Dictionary (4th pocket ed. 2011). Likewise, Ballentine’s Law Dictionary states than an “accidental death” is:

One that occurs unforeseen, undesigned, and unexpected. 29 Am J Rev ed Ins § 1166. One which occurs by accident, that is, was not designed or anticipated, albeit it may occur in consequence of a voluntary act.

Accidental Death, Ballentine’s Law Dictionary (3rd ed. 1969).

Under the above two definitions, definitions that are usually considered to come from the common law, death from the COVID-19 virus would be considered to be an “accidental death.”

Look to State Insurance Laws for Definitions.

One should also immediately look at the state’s insurance statutes to see if their state’s law defines “accidental death” in terms of insurance coverage. As an example, Florida law provides such definitions in Chapter 627 of Florida Statues which deals with insurance contracts.

Section 627.429(5)(c), Florida Statutes, is of particular note. Regarding death from HIV, for example, it states:

Except for preexisting conditions specifically applying to sickness or medical condition of the insured, benefits under a life insurance policy shall not be denied or limited based on the fact that the insured’s death was caused, directly or indirectly, by exposure to the HIV infection or a specific sickness or medical condition derived from such infection. This paragraph does not prohibit the issuance of accidental death only or specified disease policies.

Section 627.429(5)(c), Florida Statutes (emphasis added).

This is significant because the Human Immunodeficiency Virus (HIV) is a very slow-acting disease that harms one’s immune system by destroying the white blood cells that fight infection. Death may not occur for years, even decades from an infection. Whereas, COVID-19 is a fast-acting respiratory virus. If death from HIV could be considered an “accidental death,” than death from COVID-19 certainly could be classified as “accidental death,” as well.

Legal Arguments for “Accidental Death”

If you have a death in your family and there is life insurance coverage on that person, you should not accept the insurance company’s determination that the death is from “natural causes” as opposed to “accidental death.” Challenge this decision, in court, if necessary.

A death caused by the COVID-19 virus is clearly “from an unusual event.” I doubt that anyone would even contest this issue. It is also clearly “one that was not voluntary, intended, [or] expected.” Again, the novel coronavirus pandemic has taken the world by surprise. How can anyone in their right mind argue that it was truly “expected.” “Foreseeable” would be an objective test as to whether this was something “reasonably foreseeable.” It does not appear, from the shock and unreadiness displayed by state and national governments and health officials, that this event was truly reasonably foreseeable.

I did not foresee it, did you? If 99.999% of the populace did not foresee it, how can it be argued that it is reasonably foreseeable? At the very least, this is a jury question and the foregoing should be argued to the jury. If the average reasonable man (the man who is a legal fiction) did not foresee this pandemic and the deaths that result, how can it not be an “accidental death”? It seems that any jury would be hard-pressed to find other than an “accidental death.”

Contact Health Law Attorneys Experienced in Representing Health Care Professionals and Providers.

At the Health Law Firm, we provide legal services for all health care providers and professionals. This includes physicians, nurses, dentists, psychologists, psychiatrists, mental health counselors, Durable Medical Equipment suppliers, medical students and interns, hospitals, ambulatory surgical centers, pain management clinics, nursing homes, and any other healthcare provider. It also includes medical students, resident physicians, and fellows, as well as medical student professors and clinical staff. We represent facilities, individuals, groups and institutions in contracts, sales, mergers, and acquisitions. The lawyers of The Health Law Firm are experienced in complex litigation and both formal and informal administrative hearings. We also represent physicians accused of wrongdoing, in patient complaints, and in Department of Health investigations.

To contact The Health Law Firm, please call (407) 331-6620 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 Orlando, Florida, area. www.TheHealthLawFirm.com. The Health Law Firm, 1101 Douglas Ave. Suite 1000, Altamonte Springs, FL 32714, Phone: (407) 331-6620.

By The Health Law Firm|2024-03-14T10:00:00-04:00May 7, 2020|Categories: Health Facilities Law Blog|Tags: administrative complaint, Administrative Hearing, Department of Health (DOH), DOH defense attorney, Florida health law attorney, health care attorney, health care fraud, health care fraud defense attorney, health care lawyer, health law defense attorney, health law firm, representation for healthcare professionals, reviews of The Health Law Firm|1 Comment

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

By 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 therapist’s 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 Greatest Assets are Your Professional and Personal Reputation.

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.

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

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?)

Best Advice: 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 Massage Therapy 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.

By The Health Law Firm|2024-03-14T10:00:35-04:00June 1, 2018|Categories: In the Know, In the News, Massage Therapy, Massage Therapy License, The Health Law Firm Blog|Tags: administrative charges, administrative complaint, defense attorney, election of rights (EOR), Florida Board of Massage Therapy, Florida College of Natural Health, formal hearing, Informal hearing, license, license disciplined, license investigation, license revoked, licensure defense coverage, massage therapist, massage therapy defense, voluntary relinquishment|Comments Off

Department of Health (DOH) Asking Suspended Florida Massage Therapists to Voluntarily Relinquish Their Licenses

By 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 Terminated.

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.

Alleged Fake Documents Spotted by a DOH Official.

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 Speaks Out.

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 Requesting 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 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.

Other 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

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.

By The Health Law Firm|2024-03-14T10:00:36-04:00June 1, 2018|Categories: In the Know, In the News, Massage Therapy, Massage Therapy License, The Health Law Firm Blog|Tags: administrative charges, administrative complaint, advanced therapy, back pain investigation, defense attorney, Department of Health (DOH), DOH investigation, emergency suspension order (ESO), fake massage therapist, Florida Board of Massage Therapy, Florida College of Natural Health, formal hearing, human trafficking, Informal hearing, license investigation, licensed massage therapist, licensure defense coverage, massage therapist, Massage therapy, massage therapy defense, neck pain investigation, neuromuscular therapy, physical therapy, rehabilitation investigation, shoulder surgery investigation, sports medicine therapy, trigger point therapy|Comments Off

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

By 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.

By The Health Law Firm|2024-03-14T10:00:36-04:00June 1, 2018|Categories: Department of Health, Health Care Industry, In the Know, In the News, Informal Hearings, Licensing issues, Massage Therapy, Massage Therapy License, The Health Law Firm Blog|Tags: administrative charges, administrative complaint, advanced therapy, back pain investigation, defense attorney, dentists, Department of Health (DOH), DOH investigation, election of rights (EOR), emergency suspension order (ESO), fake massage therapist, Florida Board of Massage Therapy, Florida College of Natural Health, formal hearing, human trafficking, Informal hearing, license investigation, licensed health professionals, licensed massage therapist, licensure defense coverage, massage therapist, Massage therapy, massage therapy defense, mental health counselors, neck pain investigation, neuromuscular therapy, nurses, pharmacists, physical therapy, physicians, psychologists, rehabilitation investigation, shoulder surgery investigation, sports medicine therapy, trigger point therapy|1 Comment

Practicing Medicine Without a Medical License Lands Miami Couple Behind Bars

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

By now, you have heard stories of fake doctors and dentists in South Florida working on patients and causing severe injuries.

Usually, these are solo efforts. However, according to CBS Miami, a couple was arrested back in August of 2011, for practicing medicine without a license. The wife owned a clinic where the husband treated patients. The majority of the patients were children, but the fake doctor also apparently performed gynecological exams on female patients.

Click here to see the story from CBS Miami.

Phony Doctor’s Clinic Fooled Customers.

The clinic apparently looked legitimate to its customers, and other facilities would even refer patients there. A legitimate licensed physician, listed as the clinic supervisor, claims he was duped by the clinic and believed that the fake doctor was a nurse practitioner. The real physician also accuses the fake doctor of forging his signature.

The fake doctor holds only a license to operate x-ray machines. From a check on the Department of Health (DOH) website, that license expired seven years ago.

Real Physician Faces Charges for Assisting Fake Doctor.

The real physician was under investigation for his alleged involvement with the fake doctor and the clinic. Though the arrests happened in November 2011, the real physician was served with a complaint by the DOH just recently, on May 29, 2012.

Click here to see the real physician’s administrative complaint.

The real physician is accused by the DOH of assisting the fake doctor in his unlicensed practice of medicine. The outcome of the proceedings has yet to be seen.

Practicing Medicine Without A Legitimate License Is a Crime.

Practicing medicine without a license is a crime. Additionally, so is helping someone practice medicine without a license. As a practitioner, you may be asked to supervise or join a practice. Remember, your license may be at stake with any wrongdoing by your subordinates. Before you join a practice or agree to supervise others, check first with the DOH that the other providers are legitimate. You can verify a license for free on the DOH’s website.

Remember, a license to practice medicine in Venezuela, Cuba, or anywhere else, is just that: a license to practice in that country. It does not allow a person to practice medicine in the United States.

More Stories on Fake Physicians and Other Health Professionals to Come.

In the near future on this blog, we will include additional articles on fake doctors and health professionals, some old, some new.

To see a blog on a fake South Florida dentist and the damage he inflicted on a teenage girl, click here. To read a blog on an infamous Florida teen impersonating a physician’s assistant (PA), click here. You can also read the story of a fake plastic surgeon in New York by clicking here.

Comments?

What do you think if this story? Leave a comment below.

Contact a Health Law Attorney Experienced in Representing Health Care Providers in DOH Cases.

If you find yourself working for or supervising someone that does not have a valid Florida license, your own license may be at risk. If and when the Department of Health (DOH) becomes involved, do not sign anything, do not speak to the investigators and do not make any statements. Contact an experienced health law attorney immediately to review your case.

The Health Law Firm represents dentists, pharmacists, pharmacies, physicians, nurses, and other health providers in investigations, regulatory matters, licensing issues, litigation, inspections and audits involving the Drug Enforcement Agency (DEA), Department of Health (DOH), and other law enforcement agencies.

If you are aware of an investigation of you or your practice, or if you have been contacted by the DEA or DOH, contact an experienced health law attorney immediately.

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

Sources:

CBS Miami. Accused Fake Doctor, Wife Bond Out of Jail. CBS Miami online. (August 25, 2011). From: http://miami.cbslocal.com/2011/08/25/police-arrest-accused-fake-doctor-in-miami/

About the Authors: Danielle M. Murray 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.

“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.

By The Health Law Firm|2024-03-14T10:00:37-04:00June 1, 2018|Categories: Department of Health, Fake Health Care Professionals, In the Know, Licensing issues, Medical License, The Health Law Firm Blog|Tags: administrative complaint, defense attorney, defense lawyer, Department of Health (DOH), doctor, doctor defense, DOH investigation, fake doctor, gynecology, health law, license, medicine, Miami, physician, physician defense, revocation, south florida, suspension, termination|1 Comment

Advice for All Massage Therapists: Please Talk to a Lawyer Before You 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 Anything May Hurt Your Case.

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 “Semi-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.”

How Investigators Try to Get You to Not Talk to an Attorney.

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.

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.

“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.

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

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 Psychology, 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 Psychology 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 pleaded 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.

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

By The Health Law Firm|2024-03-14T10:00:42-04:00June 1, 2018|Categories: Informal Hearings, Mental Health, The Health Law Firm Blog|Tags: administrative charges, administrative complaint, Administrative Hearing, Department of Health (DOH) Investigation, disciplinary action, disputed issues of material fact, election of rights (EOR) form, final order, Florida Board of Psychology, formal administrative hearing, Informal hearing, mitigating factors, Professionals Resource Network (PRN), psychologist, settlement agreement|Comments Off

Massage Therapists Needs Good Professional Liability Insurance, Too

By 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 the 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 Most Important Reason to Buy Insurance: To Provide Legal Protection for a 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.

Please Think About These Points When Buying 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.

Question 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.

It’s Expensive to Defend Your License, Insurance Helps.

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.

More Than 100 Massage Therapists’ Licenses Were Suspended in Florida.

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.

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.

“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.

Locating a Healthcare Providers Service Organization (HPSO) Insurance Defense Attorney in Florida

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

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

Benefits of HPSO Insurance.

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

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

If you are a pharmacist, own a pharmacy, are a massage therapist, own an assisted living facility (ALF), are a mental health counselor or a social worker, or you are one of the many other types of health care professionals who HPSO insures, it should be fairly easy to find experienced health lawyers to represent you, especially in Florida.

Our firm and our attorneys, including George F. Indest III, Michael L. Smith, Joanne Kenna, Carole C. Schriefer, Lance O. Leider, Christopher E. Brown and Danielle M. Murray, routinely represent licensed health care professionals, interns and students in all types of administrative investigations and hearings and in defending lawsuits and other actions that have been filed. We also represent health facilities in license defense, survey complaints and administrative hearings. We represent them throughout Florida, from Pensacola, to Jacksonville, to Key West. We also occasionally represent them in other states, as well. We accept HPSO Insurance assignments.

Free Legal Advice: Get Insurance Immediately.

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

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

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

Find an Experience Health Law Attorney in the Event of an Investigation.

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

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

Do Not Skimp on Insurance Coverage.

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

Contact Health Law Attorneys Experienced in Representing Health Care Professionals and Providers.

Our firm regularly represents pharmacists, massage therapists, mental health counselors, registered nurses, assisted living facilities, home health agencies, nurse practitioners, lab technicians, occupational therapists, physical therapists, social workers, physician assistants, psychologists and other health professionals in many different legal matters.

Services we provide include representation before your professional board, in DOH investigations, in administrative hearings, in civil litigation, in defense of malpractice claims, in professional licensing matters, in defense of allegations concerning HIPAA privacy violations and medical record breaches, in Drug Enforcement Administration (DEA) actions, and in many other matters.

We routinely represent physicians, dentists, nurse practitioners, and others in defending against malpractice claims, civil lawsuits, administrative complaints, peer review actions, DOH investigations, Medicare audits, Medicaid audits, and other matters. In cases in which the health care professional has professional liability insurance or general liability insurance which provides coverage for such matters, we will seek to obtain coverage by your insurance company and will attempt to have your legal fees and expenses covered by your insurance company. If allowed, we will agree to take an assignment of your insurance policy proceeds in order to be able to submit our bills directly to your insurance company.

We also defend health professionals and health facilities in general litigation matters and business litigation matters.

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

Comments?

Do you have professional liability insurance? Why or why not. Please leave any thoughtful comments below.

“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.

By The Health Law Firm|2024-03-14T10:00:44-04:00June 1, 2018|Categories: Administrative law, Insurance, The Health Law Firm Blog|Tags: administrative attorney, administrative complaint, administrative hearings, administrative lawyer, advanced registered nurse practitioners (ARNPs), Agency for Health Care Administration (AHCA) investigation, AHCA complaint, assisted living facility (ALF), defense attorney, defense lawyer, doctors, DOH investigation, experienced health attorney Florida, experienced health lawyer Florida, Florida defense attorney, Florida defense lawyer, Florida Department of Health (DOH), Florida license defense, health facilities, health professionals, Healthcare Providers Service Organization (HPSO) Insurance, licensed mental health counselors (LMHCs), massage therapists, nurses, physical therapists, professional liability insurance, psychologists, social worker|Comments Off