license disciplined

Home/Tag: license disciplined

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.

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

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 therapists’ license.

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

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

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

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

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

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

Regardless, in my personal opinion and experience:

  1. Few massage therapists return their election of rights (EOR) forms on time and therefore, a default is entered against them.
  2. Few massage therapists return their election of rights (EOR) forms to state they are contesting the facts and desire a formal hearing to contest the charges against them.
  3. Few massage therapists even bother to show up at informal hearings involving their licenses.
  4. When they do, they show up at a hearing with a spouse or friend to represent them instead of an experienced attorney familiar with such matters (Q: If you needed brain surgery, would you have it performed by a spouse or friend instead of an experienced neurosurgeon?)
  5. If they do retain an attorney to advise and represent them, they either go with the cheapest one they can find or go with one who has no experience at all before the Board of Massage Therapy. (Q: If you needed brain surgery, would you pay your family practice physician to perform it?)

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

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

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

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

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

Additional Consequences of Discipline on Your Massage Therapy License.

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

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

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

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

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

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

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

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

Conclusion: Defend Your Reputation and Your License.

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

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

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

Stay tuned to this blog for more.

Don’t Wait Until It’s Too Late; Consult with an Experienced Health Law Attorney Early.

Do not wait until action has been taken against you to consult with an experienced attorney in these matters. Few cases are won on appeal. It is much easier to win your case when there is proper time to prepare and you have requested a formal hearing so that you may actually dispute the facts being alleged against you.

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

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

Florida Suspends the Licenses of 81 Massage Therapists

佛罗里达州暂停许可证的81个按摩治疗师

据一些来源,国家有关部门宣布暂停超过80按摩治疗师的执照,出现欺诈手段获得的牌照的帮助下,雇员与天然健康的佛罗里达大学。 2012年9月19日,81的紧急停牌订单(ESOS)签署,暂停牌照的按摩治疗师正在进行的调查的一部分。

要看到整个佛罗里达州州长办公室的新闻稿,请点击这里

 

调查发现,超过200治疗师取得执照的欺诈。

根据坦帕湾时报“,今年早些时候,佛罗里达州卫生署(DOH),清水贩运人口特别工作组以及南佛罗里达州的人口贩运问题特别工作组开始调查多种按摩治疗业务。调查转向了200多个按摩治疗师,他似乎已经以欺诈手段获得他们的按摩治疗执照。

 

佛罗里达州的按摩学校员工协助获取欺诈许可证。

它被认为是200人没有注册按摩治疗学校,但没有收到成绩单,从佛罗里达大学的天然保健品,显示他们完成训练。坦帕湾时报“的文章指出,这些人涉嫌个人谁曾在佛罗里达州的一个按摩学校的誊本,以换取支付10,000元及15,000元。

,然后用来按摩执照,卫生署的成绩单。

州长现在已经订购了7天的审查,以确保它们符合执照的要求和规定的按摩学校。当局相信,更多的悬浮液可能会被发出。

 

按摩治疗师的悬浮思想被捆绑到人口贩运。

根据坦帕湾时报“,在新闻发布会上说,当局紧急停工令,在某种程度上,是一个努力的目标佛罗里达州的人口贩运问题。当局说,按摩院是一个典型的地方寻找人口贩运的受害者。

当局还表示,他们不知道,如果这81假的按摩治疗师是人口贩运的受害者。很明显,但是,他们没有合法经营。

点击这里阅读整篇文章,从坦帕湾时报“

 

按摩治疗师的日常法律咨询。

我们经常提醒按摩治疗师和其他持牌的健康专业人士与我们有一个法律咨询:

1。不要说任何卫生署(DOH)研究员,直到你有一个经验丰富的卫生法律律师说。
2。不要让任何书面陈述,或响应卫生署的任何字母,直到你有一个经验丰富的健康律师说。
3。读一切你收到,请务必在截止日期前提交选举的权利(EOR)语句,但只有在与经验丰富的健康律师咨询。
4。你不应该尝试没有律师为自己辩护。
5。尝试谈谈你的出路的情况或解释它在你身边只会伤害你。
6。许多类型的按摩治疗师,保险实际支付的律师来保护你,在这种情况。

 

联系卫生与健康调查部的按摩治疗师经验丰富的律师。

生律师事务所的律师提供法律代表健康(DOH)调查和其他类型的卫生专业人员和供应商的调查部的按摩治疗师。

如要生律师事务所联系,请致电(407)331-6620或(850)439-1001,访问我们的网站www.TheHealthLawFirm.com。

 

作者简介:乔治·F. Indest III,MPA,法学硕士,法学博士,是由佛罗里达州的律师卫生法中委员会认证的。他是总裁兼执行合伙人的生律师事务所,其中有一个国家的做法。其主要办公地点设在佛罗里达州奥兰多市,区。 www.TheHealthLawFirm.com健康律师事务所,1101道格拉斯大道。,阿尔塔蒙特斯普林斯,FL 32714,电话:(407)331-6620。

 

Florida Massage Therapist Charged in Sexual Battery Case Following Several Complaints

1 Indest-2008-1By George F. Indest III, J.D., M.P.A., LL.M., Board Certified by The Florida Bar in Health Law
On June 24, 2016, a South Florida massage therapist was charged with sexual battery after being accused of assaulting a client during a session in February 2016. The therapist who allegedly worked at Chi Spa in Pompano Beach, Florida, pleaded not guilty on charges of sexual battery on a person older than 18 without violence.

The Complaints.

According to police reports, at least three women claimed to have been inappropriately touched during massage appointments at Chi Spa. Police said the spa’s owner said she was aware of one incident because the woman called to ask for her money back and complained about “too much touching.”

To learn about how to protect yourself as a massage therapist from situations like this and the repercussions, click here to read one of my prior blogs.

Contact Health Law Attorneys Experienced in the Representation of Massage Therapists.

The attorneys of The Health Law Firm provide legal representation to massage therapists in Department of Health (DOH) investigations, licensing matters and other types of investigations of health professionals and providers. We have represented a number of massage therapists who have had summary actions initiated against their massage therapy licenses by the Department of Health (DOH).

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

Sources:

Batchelor, Samantha. “South Florida massage therapist accused of touching clients’ breasts, genitals.” Local 10 News. (June 25, 2016). Web.

Geggis, Anne. “Massage therapist charged in sexual battery case.” Orlando Sentienl. (June 25, 2016). Web.

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.

KeyWords: Department of Health Investigation, Florida Board of Massage Therapy, Massage Therapy Licence, criminal background screening, Florida Department of Law Enforcement, Florida massage therapist, license disciplined, license investigation, license revoked, licensure defense coverage, massage therapy defense, massage therapy regulations, employee of massage establishment, employer of massage establishment, massage therapist attorney, massage therapist lawyer, regulations of massage therapists, regulations of professionals and occupations, The Health Law Firm, Health Law

“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 © 2016 The Health Law Firm. All rights reserved.

Preserve Your Dental License – Pretrial Intervention and Drug Court as Alternatives to Conviction, Nolo Contendere, or Adjudication Withheld

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

As if being faced with the consequences of criminal charges wasn’t frightening enough, physicians, nurses, dentists, psychologists and other health professionals have the added danger of having their licenses disciplined or revoked if they plead nolo contendere or guilty to a criminal charge

Whether you are applying for a new license to practice or have been practicing for years you are under an obligation to report “convictions” and “pleas” to the board that governs your profession.  The normal definition of a “conviction” is not the same as the Department of Health (DOH) and the various professional boards use.

Pursuant to Section 456.072, Florida Statutes, licensed healthcare providers can be disciplined for all of the following dispositions of a criminal case:

– Actual conviction (by a judge or jury)

– Entering a plea of guilty

– Entering a plea of nolo contendere 

– Adjudication Withheld

Click here to see Section 456.072, F.S.

That’s right, adjudication withheld and nolo contendere pleas are all treated the same as a conviction as far as your professional license is concerned.

While these alternative means of disposing of a criminal case may be beneficial or expedient for the average citizen, healthcare practitioners have to think of what those dispositions mean for their license.

Don’t give up hope yet though, there is an alternative that will permit your criminal case to be favorably disposed of and allow you to potentially avoid discipline to your professional license.  That alternative is pretrial intervention (PTI) programs, sometimes referred ti as “PTI” or “PTIO.”

What Is Pretrial Intervention?

PTI is a diversion program for those accused of certain types of crimes that, if successfully completed, results in the criminal charges being dismissed.  The best part of this option is that it does not require the defendant to enter any plea.

Individuals who are enrolled in PTI programs are on a sort of quasi-probation.  The criminal case against them is continued (put on hold) while the PTI program is running.  Typical conditions of PTI supervision require periodic reporting, drug screening, mental health or substance abuse counseling, community service, and payment of supervision fees.

Who Is Eligible For Pretrial Intervention?

Eligibility for entry into PTI programs is governed by Sections 948.08 and 948.16, Florida Statutes.

To see Section 948.08, F.S., or Section 948.16, F.S., click the links.

Generally, any first time offender, or any person who has previously been convicted of not more than one nonviolent misdemeanor or third-degree felony is eligible for PTI so long as the following requirements are met:

1. The defendant has voluntarily agreed to participate in PTI,

2. Consent of the victim,

3. Consent of the prosecutor, and

4. Consent of the judge who presided at the initial appearance.

Should the offense for which the practitioner is facing charges be related to controlled substances, the statute offers additional eligibility criteria:

1. Those charged with nonviolent felonies and are identified as having a substance abuse problem; or,

2. Those who are charged with felonies of the second or third degree for purchase or possession of a controlled substance, or obtaining a prescription by fraud; and

3. Who have not been previously convicted of a felony, nor admitted to a felony PTI program.

Similar programs are available for those having substance abuse problems who are charged with nonviolent misdemeanor offenses, or those who are charged with misdemeanor possession of drugs or alcohol, prostitution, or possession without a prescription.

Conclusion.

PTI may seem like more of a hassle for minor offenses than simply accepting a plea or adjudication withheld.  This may be true for the average person, but licensed health professionals have to take into account the professional consequences that come from a conviction, or other similar dispositions of the case. These include actions against their license, reports to certification bodies, reports to health facilities in which they are licensed and reports to the National Practitioner Data Bank (NPDB) or other data banks.

The most important thing to remember about PTI is successful completion of the program results in the charges being dismissed!

This means you don’t have to report anything to your board and there will be no discipline on your license.  Furthermore, you can later apply to have the arrest expunged (if you are otherwise eligible).

The benefits of entry into a PTI program by a healthcare practitioner cannot really be overstated.  The disciplinary process is often long and extremely costly.  The effects of discipline on your license can follow you for the remainder of your career and is publicly available to anyone who cares to look.

Contact Health Law Attorneys Experienced in Handling Licensure Matters.

If you have been arrested, it is strongly recommended that you retain an experienced healthcare attorney who can advise you and your criminal counsel as to the effects a potential outcome could have on your license.

The Health Law Firm routinely represents physicians, pharmacists, nurses, and other healthcare practitioners in licensure matters.  We frequently consult with criminal defense attorneys regarding defense strategies tailored to minimizing criminal sanctions while at the same time preserving the practitioner’s license.

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

Sources:

Section 948.08, Florida Statutes

Section 948.16, Florida Statutes

Section 456.072, Florida Statutes

About the Authors: Lance O. Leider is an attorney with The Health Law Firm, which has a national practice. Its main office is in the Orlando, Florida, area. www.TheHealthLawFirm.com  The Health Law Firm, 1101 Douglas Avenue, Altamonte Springs, Florida 32714, Phone:  (407) 331-6620.

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

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

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

 

Administrative Final Orders Must State Findings of Fact Based on the Evidence Presented

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

Following is a summary of a recent appellate case on an issue relevant to health law:

Borges v. Dep’t of Health, 143 So. 3d 1185 (Fla. 3d DCA 2014).
Gustavo Borges (Borges) appealed a final order of the Florida Board of Dentistry that revoked his license to practice dentistry based on a conviction of the knowing receipt of child pornography under a federal statute.

At hearing, eight lay witnesses and four expert witnesses testified. In the recommended order’s discussion of the evidence presented, which was the basis for the Board’s final order, the administrative law judge (ALJ) discussed the testimony of only one witness-Borges-after concluding that a statement by Borges constituted a concession that established that his conviction was related to his ability to practice dentistry. No other testimony was discussed in the order, or even acknowledged.

On appeal, the appellate court concluded that the ALJ’s recommended order adopted by the Board did not comply with one of the requirements of section 120.57, Florida Statutes-that an ALJ’s order must contain “express findings of fact.” The court was quick to point out that, while the findings of fact did not have to address the testimony of every witness (i.e., all twelve here), the order must at least address the factual controversies at issue to the extent they are relevant to the disposition, or address why the testimony is irrelevant. Having failed to do so in this case, the appellate court reversed and remanded.

The case summary above was originally published in the Administrative Law Section Newsletter, Vol. 34, No. 2 (Dec. 2014), a publication of The Administrative Law Section of The Florida Bar.

Editor’s Comments on Case Summary.

This case demonstrates an important concept in administrative law. This is, an administrative law judge is required to discuss the evidence presented at the hearing and make specific findings of fact based on that evidence. Failing to do this in the recommended order (RO) can lead to reversal by an appellate court.


Comments?

Do you think the appellate court should have reversed? Do you think it was important to discuss all testimonies in this case? Please leave any thoughtful comments below.


Contact Health Law Attorneys Experienced in Handling Licensure Matters.

If you have been arrested, it is strongly recommended that you retain an experienced healthcare attorney who can advise you as to the effects a potential outcome could have on your license.

The attorneys of The Health Law Firm routinely represent physicians, pharmacists, nurses, and other healthcare practitioners in licensure matters. We frequently consult with criminal defense attorneys regarding defense strategies tailored to minimizing criminal sanctions while preserving the practitioner’s license.

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.

KeyWords: Criminal law, license, defense attorney, health law, health care attorney, health care lawyer, health investigation, medical license, conviction, desntist, dentist criminal charges, Department of Health, DOH, professional license, federal statutes, license disciplined, license revoked, health attorney, finding of guilt, adjudication withheld, diversion program, DOH conviction, adjudication, discipline, criminal trial, defense lawyer, ALJ, administrative law judge, administrative law, appellate court, administrative orders, Florida Board of Dentistry, Board of Dentistry, dentistry, statutes, testimony

“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 © 1996-2015 The Health Law Firm. All rights reserved.

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 therapists’ license.

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

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

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

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

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

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

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

Regardless, in my personal opinion and experience:

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

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

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

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

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

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

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

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

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

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

Additional Consequences of Discipline on Your Massage Therapy License.

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

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

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

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

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

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

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

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

Conclusion: Defend Your Reputation and Your License.

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

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

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

Stay tuned to this blog for more.
Don’t Wait Until It’s Too Late; Consult with an Experienced Health Law Attorney Early.

Do not wait until action has been taken against you to consult with an experienced attorney in these matters. Few cases are won on appeal. It is much easier to win your case when there is proper time to prepare and you have requested a formal hearing so that you may actually dispute the facts being alleged against you.

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

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

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

 

Deadline Looming: New Fingerprint Requirement for Florida Massage Therapists

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

You can run, but you can’t hide.

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

Click here to read CS/HB 1065.

Law Details.

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

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

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

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

What’s a Digital Fingerprint?

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

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

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

Exemptions with New Requirement.

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

Purpose of the New Law.

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

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

Comments?

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

Contact Health Law Attorneys Experienced in the Representation of Massage Therapists.

The attorneys of The Health Law Firm provide legal representation to massage therapists in Department of Health (DOH) investigations, licensing matters and other types of investigations of health professionals and providers. We have represented a number of massage therapists who have had summary actions initiated against their massage therapy licenses by the Department of Health (DOH).

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

About the Author: Lance O. Leider is an attorney with The Health Law Firm, which has a national practice. Its main office is in the Orlando, Florida, area. www.TheHealthLawFirm.com The Health Law Firm, 1101 Douglas Avenue, Altamonte Springs, Florida 32714, Phone: (407) 331-6620.

“The Health Law Firm” is a registered fictitious business name of George F. Indest III, P.A. – The Health Law Firm, a Florida professional service corporation, since 1999.
Copyright © 1996-2014 The Health Law Firm. All rights reserved.

Preserving Your Nursing License: Alternatives to Conviction, Nolo Contendere or Adjudication Withheld

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

As if being faced with the consequences of criminal charges wasn’t frightening enough, physicians, nurses, dentists, psychologists and other health professionals have the added danger of having their licenses disciplined or revoked if they plead nolo contendere or guilty to a criminal charge

Whether you are applying for a new license to practice or have been practicing for years you are under an obligation to report “convictions” and “pleas” to the board that governs your profession.  The normal definition of a “conviction” is not the same as the Department of Health (DOH) and the various professional boards use.

Pursuant to Section 456.072, Florida Statutes, licensed healthcare providers can be disciplined for all of the following dispositions of a criminal case:

– Actual conviction (by a judge or jury)

– Entering a plea of guilty

– Entering a plea of nolo contendere 

– Adjudication Withheld

Click here to see Section 456.072, F.S.

That’s right, adjudication withheld and nolo contendere pleas are all treated the same as a conviction as far as your professional license is concerned.

While these alternative means of disposing of a criminal case may be beneficial or expedient for the average citizen, healthcare practitioners have to think of what those dispositions mean for their license.

Don’t give up hope yet though, there is an alternative that will permit your criminal case to be favorably disposed of and allow you to potentially avoid discipline to your professional license.  That alternative is pretrial intervention (PTI) programs, sometimes referred ti as “PTI” or “PTIO.”

What Is Pretrial Intervention (PTI)?

PTI is a diversion program for those accused of certain types of crimes that, if successfully completed, results in the criminal charges being dismissed.  The best part of this option is that it does not require the defendant to enter any plea.

Individuals who are enrolled in PTI programs are on a sort of quasi-probation.  The criminal case against them is continued (put on hold) while the PTI program is running.  Typical conditions of PTI supervision require periodic reporting, drug screening, mental health or substance abuse counseling, community service, and payment of supervision fees.

Who Is Eligible For PTI?

Eligibility for entry into PTI programs is governed by Sections 948.08 and 948.16, Florida Statutes.

To see Section 948.08, F.S., or Section 948.16, F.S., click the links.

Generally, any first time offender, or any person who has previously been convicted of not more than one nonviolent misdemeanor or third-degree felony is eligible for PTI so long as the following requirements are met:

1. The defendant has voluntarily agreed to participate in PTI,

2. Consent of the victim,

3. Consent of the prosecutor, and

4. Consent of the judge who presided at the initial appearance.

Should the offense for which the practitioner is facing charges be related to controlled substances, the statute offers additional eligibility criteria:

1. Those charged with nonviolent felonies and are identified as having a substance abuse problem; or,

2. Those who are charged with felonies of the second or third degree for purchase or possession of a controlled substance, or obtaining a prescription by fraud; and

3. Who have not been previously convicted of a felony, nor admitted to a felony PTI program.

Similar programs are available for those having substance abuse problems who are charged with nonviolent misdemeanor offenses, or those who are charged with misdemeanor possession of drugs or alcohol, prostitution, or possession without a prescription.

Benefits of PTI.

PTI may seem like more of a hassle for minor offenses than simply accepting a plea or adjudication withheld.  This may be true for the average person, but licensed health professionals have to take into account the professional consequences that come from a conviction, or other similar dispositions of the case. These include actions against their license, reports to certification bodies, reports to health facilities in which they are licensed and reports to the National Practitioner Data Bank (NPDB) or other data banks.

The most important thing to remember about PTI is successful completion of the program results in the charges being dismissed!

This means you don’t have to report anything to your board and there will be no discipline on your license.  Furthermore, you can later apply to have the arrest expunged (if you are otherwise eligible).

The benefits of entry into a PTI program by a healthcare practitioner cannot really be overstated.  The disciplinary process is often long and extremely costly.  The effects of discipline on your license can follow you for the remainder of your career and is publicly available to anyone who cares to look.

Contact Health Law Attorneys Experienced in Handling Licensure Matters.

If you have been arrested, it is strongly recommended that you retain an experienced healthcare attorney who can advise you and your criminal counsel as to the effects a potential outcome could have on your license.

The Health Law Firm routinely represents physicians, pharmacists, nurses, and other healthcare practitioners in licensure matters.  We frequently consult with criminal defense attorneys regarding defense strategies tailored to minimizing criminal sanctions while at the same time preserving the practitioner’s license.

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

Sources:

Section 948.08, Florida Statutes

Section 948.16, Florida Statutes

Section 456.072, Florida Statutes

About the Authors: Lance O. Leider is an attorney with The Health Law Firm, which has a national practice. Its main office is in the Orlando, Florida, area. www.TheHealthLawFirm.com  The Health Law Firm, 1101 Douglas Avenue, Altamonte Springs, Florida 32714, Phone:  (407) 331-6620.

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

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