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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?

Attorney Amanda I. ForbesBy 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.

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

Attorney George IndestBy 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.

“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.

Licensed Health Professionals: Keep Up with Your Continuing Education Requirements

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

Those who are licensed by the Department of Health (DOH) must be sure they are maintaining their continuing education requirements by taking the required courses in a timely manner.  We have attended at least one professional board meeting recently where there was concern expressed about licensees failing to meet their continuing education requirements.  One estimate was that approximately sixty percent (60%) were deficient of one profession.

Failing to obtain the required courses during the time period set forth by statute and by board regulation can result in disciplinary action being taken against a licensee.  Disciplinary action in one state can lead to disciplinary action commenced against a license held in another state, if the licensee holds multiple licenses.

Issues we continuously see among licensed health professionals arising out of continuing education:

1. Failure to take courses from a continuing education provider properly approved by the state board. When in doubt, ask, in writing.

2. Failure to take and complete all required courses and hours within the period of time established by the board.

3. Failure to take the exact subject matter courses required by law (such as HIV awareness, domestic violence, prevention of medical errors, etc.).

4. Failing to maintain documents proving that the provider took the courses (such as registration, payment receipt, course attendance certificate, etc.).

5. Failing to apply for or request an exemption from continuing education requirements at the time the grounds for them first arise (e.g. hardship, medical problems, not practicing).

6. Failing to respond to an audit of continuing education completion requirements (you will then be assumed to have not completed them and a DOH investigation will be opened).

7. Failing to respond in a succinct, organized manner, by letter, with proper documentation, sent to the correct address that auditor states, via certified mail, return receipt requested.

8. Assuming that the office manager, practice manager or administrative secretary is going to take care of such matters so you do not have to be concerned with them.

9. Arguing with or being demeaning to the auditor who requests information or who advises you that you are short of hours or courses.

10. Failing to immediately make up any missing hours or courses from prior periods, in addition to fully meeting all current continuing education requirements.

11. Failing to respond to citations, complaints or letters sent to you by the department of health regarding this matter.

Often consulting an experienced health law attorney on such matters can save a great deal of turmoil, mental anguish, cost and damage to your professional license and professional reputation.

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 health care provider. We represent facilities, individuals, groups and institutions in contracts, sales, mergers and acquisitions.

The services we provide include reviewing and negotiating contracts, business transactions, professional license defense, representation in investigations, credential defense, representation in peer review and clinical privileges hearings, Medicare and Medicaid audits, commercial litigation, and administrative hearings.

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

Comments?

Are you guilty of failing to meet your continuing education requirements? Do you think the continuing education classes are worth the time invested in them? Please leave any thoughtful comments below.

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

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

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

Consequences of Clinical Research Fraud and Misconduct

By George F. Indest III, J.D., M.P.A., LL.M., Board Certified by The Florida Bar in Health Law and Michael L. Smith, J.D., R.R.T.,  Board Certified by The Florida Bar in Health Law and Medical

Medical and clinical researchers, whether in an academic community or in a practice setting, spend years on clinical trials and investigations in hopes of contributing to their respective fields. Many of these researchers, however, find themselves defending their reputation after being accused of research fraud or research misconduct.


Why Researchers are Accused of Misconduct.

Although accusations of research fraud and misconduct have been present for decades, the number of complaints is on the rise, according to the FDA. In many cases, the researcher accused of such misconduct may actually be the victim of one or more unscrupulous individuals who make the complaint for his or her own ulterior motives. Some researchers may be targeted by an academic institution or the government. Other cases may involve a “whistle blower” who may just have misunderstood the situation.

Researchers Face Many Difference Accusations.

The most common accusations against researchers include: manipulating or concocting research data, failing to disclose financial interest or not properly disclosing conflict of interest, plagiarizing, failing to present data that contradicts one’s own previous research, overlooking the use of flawed data, and circumventing certain minor aspects of human-subject requirements. Researchers also face an enormous amount of pressure from funding sources. That influence on a researcher can lead to these accusations: changing the design, methodology or results of a study to meet a funding source’s expectations, ignoring details or cutting corners to meet a deadline, fabricating, falsifying or mishandling of data to gain some form of reward or benefit.

A Person and Professional Reputation can be Tarnished.

An accusation, even if later proven to be unfounded, may unfairly tarnish the personal and professional reputation of the researcher, cause the researcher to lose grants, bonuses and promotions, his or her employment may be terminated, or may even face criminal prosecution for fraud, theft or other applicable crimes.

To learn more on clinical research fraud and misconduct, click here.

Well-Known Cases of Research Fraud and Misconduct.

One of the most notorious recent cases of research misconduct involved a stem cell researcher in South Korea who claimed to have cloned human embryonic stem cells. However, the researcher was later accused of fabricating crucial data and charged with fraud and embezzlement. The fraud charges were eventually cleared, but not before the researcher’s reputation was destroyed.

From 1992 to 2002 a former research professor in Vermont falsified and fabricated data in numerous federal grant applications and academic articles. He used two million dollars in government grants – taxpayer money – for studies to perpetrate his fraud. He pled guilty to falsifying 17 grant applications to the National Institutes of Health (NIH) and fabricating data in 10 of his papers. He was ordered to serve one year and a day in federal prison, permanently barred from ever receiving more federal research grants, and ordered to write letters of retraction and correction to a number of scientific journals.

A prominent Massachusetts anesthesiologist admitted to fabricating 21 medical studies that claimed to show benefits from painkillers like Vioxx and Celebrex, according to the hospital where he worked. This data used in the studies was published in several anesthesiology journals between 1996 and 2008. This doctor was sentenced to six months in prison, followed by three years of supervised release. He was ordered to pay a $5,000 fine, forfeit $50,000 to the government and make $360,000 in restitution to pharmaceutical companies. The plea deal effectively ended his career as a physician.

Visit the Office of Research Integrity (ORI) website to learn more on research fraud and misconduct.

Contact Health Law Attorneys Experienced in Clinical Research Fraud and Misconduct.

The Health Law Firm and its attorneys have experience in representing researchers, investigators, academicians and clinicians who are the subject of clinical research fraud and misconduct. The Health Law Firm and its attorneys also have experience in representing students, employees, researchers, investigators and “whistle blowers” who report such matters including those who become the victim or reprisals and retaliation by the person against whom the report is made.

Don’t wait. Obtain the advice and counsel of experienced attorneys who are familiar with such matters and can assist you before it is too late.

If you are facing research misconduct or research fraud accusations, please visit our website for more information at www.TheHealthLawFirm.com or call The Health Law Firm at (407) 331-6620 or (850) 439-1001.

Sources:

“Grantee Misconduct: Dr. Eric T. Poehlman.” National Institutes of Health. (March 7, 2012). From: http://www.nih.gov/news/granteemisconduct.htm

Arak, Joel. “Menopause Doc Fudged Data.” CBS Evening News. (February 11, 2009). From: http://www.cbsnews.com/2100-18563_162-703359.html

Interlandi, Jeneen. “An Unwelcome Discovery.” The New York Times. (October 22, 2006). From: http://www.nytimes.com/2006/10/22/magazine/22sciencefraud.html?pagewanted=all

Winstein, Keith and Armstrong, David. “Top Pain Scientist Fabricated Data in Studies, Hospital Says.” The Wall Street Journal. (March 11, 2009). From: http://online.wsj.com/article/SB123672510903888207.html

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

Michael L. Smith, J.D., R.R.T.is Board Certified by The Florida Bar in Health Law. He 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.

Burden of Proof in Administrative Cases Involving Discipline of a Health Professional’s License – Part 2

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

I am often asked about the burden of proof that must be met by the state Department of Health (DOH) in professional licensing disciplinary cases. This could be a complaint against a physician, dentists, mental health counselor, nurse, psychologist, pharmacist or anyone else. It also includes, for example, engineers, general contractors, school teachers, architects, cosmetologists, or any other professional holding a professional license in Florida. However, since we routinely represent health professionals, I will continue to concentrate on those licenses by the state DOH in this blog. Click here to read part one.

Fifth Amendment Protection Against Self-Incrimination Applies.

Because potential license revocation proceedings are penal in nature, a respondent or license holder in such an investigation or administrative hearing has the right to remain silent under the Fifth Amendment of the United States Constitution and under the Florida Constitution.

Otherwise, this would defeat the spirit and intent of the constitutional protections guaranteed by the Fifth and Fourteenth Amendments to the United State Constitution. See, State v. Caballero, 396 So. 2d 1210, 1213 (Fla. 3d DCA 1981) (“A coerced confession offends due process of law.”); Dickerson v. U.S., 530 U.S. 428, 434, 120 S. Ct. 2326, 2331 (2000) (“We have never abandoned this due process jurisprudence, and thus continue to exclude confessions that were obtained involuntarily”); Chambers v. State of Fla., 309 U.S. 227, 228, 60 S. Ct. 472, 473 (1940) (“[U]se by a state of an improperly obtained confession may constitute a denial of due process of law as guaranteed in the Fourteenth Amendment”); and Barnes v. Merrill, 2002 WL 1313123 (D. Me. 2002) (“Involuntary statements are inadmissible under the Fifth Amendment requirement that no person can be compelled to be a witness against himself in a criminal case.”).

For Florida cases on point, see, Chancellor Media Whiteco Outdoor v. Fla. Dep’t of Transport., 26 Fla. L. Weekly D627 (Fla. 5th DCA March 2, 2001), substitute opinion entered on rehearing, 795 So. 2d 991, 26 Fla. L. Weekly D1894 (Fla. 5th DCA July 30, 2001). See also, State ex rel. Vining v. Fla. Real Estate Comm’n, 281 So.2d 487, 491 (Fla. 1973); Best Pool & Spa Service Co., Inc. v. Romanik, 622 So. 2d 65, 66 (Fla. 4th DCA 1993) (“We agree that requiring Kassover to answer . . . questions does violate his right against self-incrimination which applies not only to criminal matters but also administrative proceedings such as licensing”).

Florida Courts Require Higher Standard for Administrative Licensure Cases.

In Florida, the courts have adopted and have required the “clear and convincing” standard to be used in any case involving a professional license, finding that such action by the state is punitive or penal in nature and affects a substantial right of the respondent. The key Florida cases that discuss this are two Florida Supreme Court cases, Florida Bar v. Rayman, 238 So. 2d 594 (Fla. 1970) and Ferris v. Turlington, 510 So. 2d 292 (Fla. 1987). See also, Kozerowitz v. Fla. Real Estate Comm’n, 289 So. 2d 391 (Fla. 1974).

Any case in which a state administrative agency seeks a penalty, a fine or action affecting the status of a professional license, would require the application of a “clear and convincing standard.” An action to revoke a professional license is definitely considered to be penal. So too is an action which results in the loss of income, such as by suspending a license (so there is no professional income), a fine, or an order to refund professional fees. McDonald v. Dep’t of Prof. Reg., Bd. of Pilot Commissioners, 582 So. 2d 660 (1st DCA 1991)

Although these are all Florida cases, if you read them and follow their rationale, they go back to basic constitutional principles of due process of law and the taking away of rights or property without due process.

For example, in one case in which I defended a nursing home’s license, the state had evidence that contradicted itself. There were certain facts at issue and the state put forth two different sets of facts. The state could not prove either set of facts by “clear and convincing evidence.” Therefore, by law, the administrative law judge had to rule in favor of the license holder.

Penal Statutes, Such as Professional Discipline Statutes and Professional Practice Acts Must Be Narrowly Interpreted.

A statute is unconstitutionally void for vagueness if it fails to give a personal of ordinary intelligence fair notice of what conduct is forbidden by the Statute. Papachristou v. City of Jacksonville, 405 U.S. 156, 92 S. Ct. 839, 31 L. Ed. 2d 110 (1972). United States v. Harriss, 347 U.S. 612, 74 S. Ct. 808, 98 L. Ed. 989, (1954). Criminal statutes must be written with sufficient specificity so that citizens are given fair warning of the offending conduct, and law enforcement officers are prevented from engaging in arbitrary and erratic enforcement activity. Papachristou; Thornhill v. Alabama, 310 U.S. 88, 60 S. Ct. 736, 84 L. Ed. 1093 (1940); Lanzetta v. New Jersey, 306 U.S. 451, 59 S. Ct. 618, 83 L. Ed. 888 (1939).

Florida case law has long upheld this principle of the common law as well. Statutes must be written well enough so as to provide fair notice to ordinary citizens as to their exact meaning. State v. Warren, 558 So. 2d 55 (Fla. 5th DCA 1990), aff’d. Warren v. State 16 Fla., L. Week 28 (Fla. 1991).

When First Notified of a Pending Investigation Seek the Advice of an Experienced Health Law Attorney.

When you receive any notice, by telephone, by mail, by hand delivery or by information passed along by your employer, that an investigation has been opened against your professional license, immediately contact an attorney experienced in such matters. Do not talk to the investigator. Do not talk to the prosecuting attorney. Do not call the state agency and ask for advice on what you should do. Do not send a written statement explaining your side of the story.

You have important constitutional rights that protect you. But you have to exercise the common sense required to use these rights. Part of this is by obtaining competent legal counsel who can advise you and protect your rights. Again, we remind you that unless an attorney routinely handles this type of case, he or she may be unfamiliar with what your rights are in such a situation or how to handle it.

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 health care provider. We represent facilities, individuals, groups and institutions in contracts, sales, mergers and acquisitions.

The services we provide include reviewing and negotiating contracts, business transactions, professional license defense, representation in investigations, credential defense, representation in peer review and clinical privileges hearings, Medicare and Medicaid audits, commercial litigation, and administrative hearings.

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

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

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

Doctor Voluntarily Relinquishes License Due to Allegations of Malpractice and Over-Prescribing Oxycodone

By Danielle M. Murray, J.D., Attorney, The Health Law Firm

A doctor in Polk County, Florida, has lost his license to practice medicine. Rather than risk having his license revoked in an administrative proceeding, the now former doctor offered to voluntarily relinquish his license. The Florida Board of Medicine voted to accept the voluntary relinquishment on Friday, August 3, 2012, according to a Lakeland Ledger article.

Click here to read the entire Lakeland Ledger article.

Doctor Nabbed in Sting Operation for Allegedly Prescribing Oxycodone to Undercover Agents.

The article states the doctor from Winter Haven was nabbed in a sting operation in 2010 after allegedly providing prescriptions for oxycodone to undercover police officers without actually performing a valid medical examination. The physician allegedly pled no contest to trafficking oxycodone and illegal delivery of a controlled substance. He is currently awaiting sentencing for his offenses, which may result in three to seven years in prison, along with five years of probation, and mental health counseling.

He was also a named suspect in the deaths of five patients who allegedly overdosed on the medications. Prosecutors decided not to pursue homicide charges.

Doctor Also Faces Malpractice Investigation.

The doctor, who practiced internal medicine, also faced a malpractice investigation by the Florida Department of Health (DOH). According to the DOH, he is accused of mismanagement of a former patient’s care. That patient allegedly developed an aggressive form of prostate cancer as a result. A subsequent doctor who treated the patient ordered a biopsy and diagnosed the patient with prostate cancer that was far advanced.

To read the entire case from the DOH, click here.

Reasons to Not Voluntarily Relinquish a Medical License.

We almost always counsel our clients to refrain from voluntarily relinquishing their medical licenses in such circumstances. A voluntary relinquishment of a license in the face of a pending investigation is treated, for all practical purposes, the same as a disciplinary revocation.

The consequences will usually 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. Action to revoke, suspend or take other action against the clinical privileges and medical staff membership of those licensed health professionals who may have such in a hospital, ambulatory surgical center, skilled nursing facility, or staff model HMO or clinic.

 4. The OIG of 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.

 5. 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.

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

 7. The board certified health professional’s certifying organization will act to revoke his or her certification.

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

Contact Health Law Attorneys Experienced in Representing Health Care Providers in DOH Cases.

The Health Law Firm represents pharmacists, pharmacies, physicians, nurses, and other health providers in investigations, regulatory matters, licensing issues, litigation, inspections and audits involving the 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:

Adams, Robin. “Two Polk Doctors Relinquish Licenses to Board of Medicine.” Lakeland Ledger. (August 3, 2012). From: http://www.theledger.com/article/20120803/NEWS/120809775?tc=ar

Adams, Robin. “Winter Haven Doctor Faces Medical Board Action for Trafficking in Oxycodone.” Lakeland Ledger. (August 2, 2012). From: http://www.theledger.com/article/20120802/NEWS/120809855/1001/BUSINESS?Title=Winter-Haven-Doctor-Faces-Medical-Board-Action-for-Trafficking-in-Oxycodone

Pleasant, Matthew. “Winter Haven Doctor Won’t Face Murder Charges in Overdose Deaths.” Lakeland Ledger. (March 29, 2011). From:

http://www.theledger.com/article/20110329/NEWS/110329349

Fields, Tammie. “Dr. Ernesto Juan Perez Arrested, Named Murder Suspect.” WTSP. (October 29, 2010). From: http://www.wtsp.com/news/topstories/story.aspx?storyid=153540

Aycrigga, George. “Drug Sting Nabs Dr. Perez; Oxycodone Charges Filed.” News Chief. (October 30,2010). From: http://www.newschief.com/article/20101030/news/10305009

About the Author: 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.

“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.

Nurse Accused of Illegally Writing Herself Prescriptions for Painkillers

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

A Central Florida nurse is in trouble with the law for allegedly writing fake prescriptions and illegally obtaining painkillers for herself, according to the Orlando NBC affiliate, WESH television. The nurse was allegedly arrested during the week of December 31, 2012. She is accused of trafficking in oxycodone and trying to fill forged prescriptions.

Click here to read the WESH article.

Pharmacist Did Not Fall for Fake Prescriptions.

According to an Orlando Sentinel article, a pharmacist, who was suspicious of one of the prescriptions the nurse tried to fill, called the doctor listed on the prescription. The doctor informed the pharmacist that she (the doctor) was the nurse’s employer, and the nurse was not a patient. It was then discovered that the nurse used the names of two doctors at her place of employment. She had stolen the prescriptions to obtain painkillers for herself.

A search of Florida’s Prescription Drug Monitoring Database allegedly showed that the nurse had obtained dozens of prescriptions for controlled substances for herself in the past year.

To read the article from the Orlando Sentinel, click here.

Nurse’s License is Currently Suspended.

According to the Department of Health (DOH) the nurse’s license is currently suspended. A complaint on the nurse’s record also shows that in December 2009, the nurse admitted to stealing pain medication from her patients. Click here to read the entire complaint from the DOH.

Useful Tips on How to Prevent Employees from Stealing.

I recently wrote an article for Medical Economics on how to prevent or detect employee embezzlement in the medical or dental office. It contains valuable information for any small health care practice owner. Topics discussed in the article include: how to recognize embezzlement warning signs, steps to take to safeguard your assets, and the proper way to take action against a suspected embezzler. To read it in its entirety, click here.

I have also written a number of blogs on abuses with narcotics. See my blog on a fake prescription ring busted in Osceola County, and a Drug Enforcement Administration (DEA) arrest of a doctor allegedly on crack cocaine charges, for example.

 

Contact Health Law Attorneys Experienced in Representing Nurses.

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

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

 

Comments?

As a health professional how do you keep tabs on your important office supplies? How would you handle an employee stealing from your office? Please leave any thoughtful comments below.

Sources:

Pavuk, Amy. “Nurse Charged with Stealing Scripts, Illegally Obtaining Painkillers.” Orlando Sentinel. (January 3, 2013). From: http://articles.orlandosentinel.com/2013-01-02/news/os-nurse-arrested-prescription-drugs-20130102_1_fake-prescriptions-prescription-sheets-cvs

WESH-TV. “Nurse Accused of Illegally Obtaining Painkillers.” WESH. (January 3, 2013). From: http://www.wesh.com/news/central-florida/seminole-county/Nurse-accused-of-illegally-obtaining-painkillers/-/17597106/17995906/-/dmj2se/-/index.html?absolute=true

Department of Health v. Tabetha Terry, R.N. Case Number 2010-13467. Administrative Complaint. (February 22, 2011). From: http://www.thehealthlawfirm.com/uploads/tabetha%20terry%20complaint.pdf

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 81 Massage Therapists’ Licenses

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 a Florida College of Natural Health employee. 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 showing they completed training at the Florida College of Natural Health in Pompano Beach, Florida. The Tampa Bay Times article states that these people allegedly paid between $10,000 and $15,000 to an individual who worked at the Florida College of Natural Health 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.

“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.

Is It Legal to Make Flu Shots Mandatory for Health Care Professionals?

00011_RT8By George F. Indest III, J.D., M.P.A., LL.M., Board Certified by The Florida Bar in Health Law

The warnings have been loud and clear from the Centers for Disease Control and Prevention (CDC). This influenza season is off to an early and serious start. With that in mind, a number of states are requiring all health professionals in the state to receive the flu vaccination. Some of those opposed to getting vaccinated are being fired by hospitals and health facilities. Because of this, a controversy is arising between employee rights and patient safety, according to a number of news sources.

Click here to read more on this year’s flu season from the CDC.

Mandatory Flu Shots to Keep Patients Safe.

In December 2010, the Department of Health and Human Services (DHHS) announced a 10-year agenda to improve the nation’s health. It’s called Healthy People 2020. A part of this agenda calls for a ninety percent (90%) average vaccination rate of health professionals. Click here to read the press release on the Healthy People 2020 initiative from the DHHS.

According to an American Medical News article, there’s a push in the medical community to meet this goal as soon as possible. The CDC states that as of November 18, 2011, close to eighty-four percent (84%) of doctors in the U.S. had been immunized against influenza. The CDC is praising these doctors for this high number, hoping other health professionals and the public will follow suit.

The safety of patients is the chief reason for the mandate. In an ABC News article, one Indiana hospital said that it implemented the mandatory vaccine in September of 2012, to promote patient safety. Of the hospital’s 26,000 employees statewide, ninety-five percent (95%) have complied.

Health Care Professionals Are Fired If They Refuse to Get the Vaccine.

A large majority of employees at the Indiana hospital complied with the mandate; however, 1,300 employees did not. According to ABC News, eight employees, including at least three veteran nurses, were allegedly fired because they refused to get a flu vaccine.

The fired nurses are standing their ground, saying they should have the right to refuse the flu vaccine. One nurse had filed two medical exemption requests, a religious exemption request and two appeals. All were denied by the hospital. To read more on this story from ABC News, click here.

In October 2012, Rhode Island mandated immunizations for all health care workers who have patient contact. On December 6, 2012, a health care worker union filed a federal lawsuit against the Rhode Island Department of Health (DOH) to prevent it from implementing the regulations, according to a Fierce Healthcare article. Click here to read the entire Fierce Healthcare article.

Arguments Against the Flu Shot.

The attorney representing the Indiana nurses, who were fired, states that his clients had the right to refuse their flu shots. He argues Title VII of the Civil Rights Act of 1964 prohibits religious discrimination against employees. The attorney is suggesting religion is legally broad under the First Amendment, so it can include any strongly held belief. According to a Chicago Tribune article, in 2009 New York mandated flu shots for all health workers, during the H1N1 outbreak. Unions fought the issue in court, and the state has since relaxed the rule.

The Flu in Florida.

I’ve recently received calls from several local health care professionals working in different Florida hospitals, regarding refusing flu shots and other vaccinations. I’ve also read the news stories about Tampa General Hospital and Moffitt Cancer Center in Tampa requiring employees to receive the influenza vaccine. According to the news articles, the two Tampa health facilities require employees who refuse the flu shot to wear surgical masks.

However, the states and hospitals may not back down in this case. The issue may have to be decided by the courts. I promise to write more on this topic later.

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 health care provider. We represent facilities, individuals, groups and institutions in contracts, sales, mergers and acquisitions.

The services we provide include reviewing and negotiating contracts, business transactions, professional license defense, representation in investigations, credential defense, representation in peer review and clinical privileges hearings, Medicare and Medicaid audits, commercial litigation, and administrative hearings.

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

Comments?

What do you think of mandated flu shots for health care workers? Is receiving a flu shot mandatory at your job? As a health care professional, do you think it is important to receive a flu shot? Is there enough medical evidence to justify firing health care professionals for not receiving the flu shot? Please leave any thoughtful comments below.
Sources:

Lupkin, Sydney. “Nurses Fire for Refusing Flu Shot.” ABC News. (January 3, 2013). From: http://abcnews.go.com/Health/indiana-hospital-fires-nurses-refusing-flu-shot/story?id=18116967

Moyer, Christine. “More Physicians on Track to get Flu Shots.” American Medical News. (December 14, 2012). From: http://www.ama-assn.org/amednews/2012/12/10/hlsb1214.htm

Cheung-Larivee, Karen. “Health Unions Sue Over Mandated Flu Shots.” Fierce Healthcare. (December 10, 2012). From: http://www.fiercehealthcare.com/story/health-unions-sue-over-mandated-flu-shots/2012-12-10

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.

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

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.

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.

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