DOH Releases Quarterly Report Covering Through March 2021

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

The Florida Department of Health’s Quarterly Performance Report (QPR) for the Third Quarter of Fiscal Year 2020-2021, was recently released. It provides information and statistics on actions involving licensed health professionals through March 2021.

Scope of the Florida DOH’s Control.

First, note that Florida’s Department of Health regulates 22 health care practitioner boards and four health professional councils. This makes it one of the largest such organizations in the country. Second, this also means that the practice of health care in Florida is one of the most heavily regulated anywhere in the U.S., with each professional board, as well as the Department of Health, having specific Florida statutes governing their professions, as well as the different boards each enacting different sets of administrative rules regulating those professions.

The Quarterly Performance Report contains financial and statistical information concerning licensed health professionals.

Key Emphasis on Unlicensed Practice of Health Care Professions.

The key emphasis of this report is the Department of Health’s ongoing efforts to reduce and eliminate the unlicensed practice (UP) of health care professions in the state. This is often referred to generically as the “unlicensed practice of medicine,” but it applies to any health profession for which a license in Florida is required, for example, massage therapy.

A large Number of Health Care Professionals in Florida.

The Report points out that the Department of Health issued 29,651 professional licenses to new applicants just in the Third Quarter of the fiscal year, from January 1, 2021, through March 31, 2021.

The Medical Quality Assurance (MQA) division of the Department of Health issued 102 cease and desist orders to unlicensed individuals whose unregulated and illegal activities were reported to it. It referred 98 complaints to law enforcement agencies for potential criminal violations.

The unlicensed practice of a health profession in Florida is a felony.

It would be interesting to imagine how many additional applicants there might have been for licensed and how many additional complaints and prosecutions for unlicensed practice there might have been if the COVID-19 pandemic hadn’t been in full bloom. The QPR shows overall enforcement support down for the Fiscal Year 2020-2021, undoubtedly because of this.


Which Professions Have the Most Unlicensed Violations?

Although the QPR does not discuss this, from my own personal experience, the ere are three top runners: massage therapy, nursing, and dentistry; note, however, that this is my opinion, only.

It seems to me that there are many cases of mistaken unlicensed practice brought against massage therapists because of mistakes in identity by investigators. We have experienced cases where investigators arrest several different individuals of foreign origin who happen to be present at a massage establishment and accuse them of practicing there without a license when that person was only there visiting a friend or relative and did not touch any client. Often the visitor and even the licensed professionals there will speak little or no English, therefore being unable to clear up any confusion.

Dentistry is another profession where there is a great deal of unlicensed practice. Often this arises when an individual was a dentist in a foreign county and relocates to the U.S., but is unable to obtain a license. They may set up shop in a home or garage and hold themselves out to a certain group speaking the same foreign language, as able to provide skilled dental services. To me, the number of unlicensed practice cases I have encountered in this profession is largely due to the absence of qualified licensed dentists providing care in our communities, especially to the indigent and immigrant communities.

Charges of unlicensed practice of nursing often arise because of nurses who may have been trained abroad failing to make sure that everyone they work with refers to them as “medical assistants” or whatever other role they are filling. It is very common in doctors’ offices and medical practices to refer to anyone who assists the doctor in any way as “the nurse.” One must be careful if one is not a licensed nurse to correct this mistitling whenever it occurs. We have had multiple cases of a doctor’s competitor or a disgruntled patient filing a complaint that the doctor’s medical assistant was holding himself out to be a nurse when they were not.

To Read the entire DOH Third Quarterly Performance Report for 2020-2021, click here:

http://www.floridahealth.gov/licensing-and-regulation/reports-and-publications/_documents/qpr3-2021.pdf

Remember the Mission of the Florida Department of Health; It is Not to Help YOU.

The QPR emphasizes the same thing you will hear at every professional board meeting if you attend it. That is, the mission of the Florida Department of Health is to protect, promote, and improve the health of all people in Florida and to protect the public. It is not to advocate for or help any individual licensed health professional.

That is one of the reasons I continually tell licensed health professionals that if you want advice on what to do or how to do it legally, don’t call and ask the Department of Health.

First, there is no individual who is authorized to give you advice on what to do or not to do on behalf of any profession, board, or council. Second, there is no individual who is authorized to make decisions on behalf of any professional board or council. A professional board speaks when it meets, discusses an issue, and votes on that issue. That is how decisions are made; not by what one employee may think.

You may send all of your complaints and other hate mail to me at one of the addresses given below.

Contact Health Law Attorneys Experienced with Department of Health Matters and Investigations.

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 (DME) suppliers, medical students and interns, chiropractors, hospitals, ambulatory surgical centers, pain management clinics, nursing homes, and any other health care provider

Our attorneys provide legal representation in Department of Health (DOH) investigations, Drug Enforcement Administration (DEA) investigations, Federal Bureau of Investigation (FBI) investigations, and other types of investigations of health professionals and providers.

To contact The Health Law Firm, please call (407) 331-6620 or Toll-Free (888) 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 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 representation, DOH defense lawyer, DOH investigation, representation for DOH investigations, DOH investigation defense attorney, DOH representation, representation for board licensing complaint, board licensing complaint representation, board licensing complaint lawyer, board representation for healthcare professionals, licensure defense, licensure defense attorney, licensure defense representation, representation for administrative complaint, administrative licensure investigation representation, healthcare license representation, administrative hearing attorney, Agency for Health Care Administration (AHCA) representation, AHCA attorney, AHCA defense lawyer, nurse attorney, representation for nurses, nurse defense lawyer, healthcare attorney, representation for healthcare professionals, Drug Enforcement Administration (DEA) agents, FBI agents, OIG special agents, Medicaid Fraud Control Unit (MFCU) investigators, representation for physicians, The Health Law Firm reviews, reviews for The Health Law Firm

“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 © 2021 The Health Law Firm. All rights reserved.

 

 

 

Department of Health Quarterly Report Released Covering Through March 2021

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

The Florida Department of Health’s Quarterly Performance Report (QPR) for the Third Quarter of Fiscal Year 2020-2021, was recently released. It provides information and statistics on actions involving licensed health professionals through March 2021.

Scope of the Florida Department of Health’s Control.

First, note that Florida’s Department of Health regulates 22 health care practitioner boards and four health professional councils. This makes it one of the largest such organizations in the country. Second, this also means that the practice of health care in Florida is one of the most heavily regulated anywhere in the U.S., with each professional board, as well as the Department of Health, having specific Florida statutes governing their professions, as well as the different boards each enacting different sets of administrative rules regulating those professions.

The Quarterly Performance Report contains financial and statistical information concerning licensed health professionals.

Key Emphasis on Unlicensed Practice of Health Care Professions.

The key emphasis of this report is the Department of Health’s ongoing efforts to reduce and eliminate the unlicensed practice (UP) of health care professions in the state. This is often referred to generically as the “unlicensed practice of medicine,” but it applies to any health profession for which a license in Florida is required, for example, massage therapy.

Large Number of Health Care Professionals in Florida.

The Report points out that the Department of Health issued 29,651 professional licenses to new applicants just in the Third Quarter of the fiscal year, from January 1, 2021, through March 31, 2021.

The Medical Quality Assurance (MQA) division of the Department of Health issued 102 cease and desist orders to unlicensed individuals whose unregulated and illegal activities were reported to it. It referred 98 complaints to law enforcement agencies for potential criminal violations.

The unlicensed practice of a health profession in Florida is a felony.

It would be interesting to imagine how many additional applicants there might have been for licensed and how many additional complaints and prosecutions for unlicensed practice there might have been if the COVID-19 pandemic hadn’t been in full bloom. The QPR shows overall enforcement support down for the Fiscal Year 2020-2021, undoubtedly because of this.

Which Professions Have Most Unlicensed Violations?

Although the QPR does not discuss this, from my own personal experience, the ere are three top runners: massage therapy, nursing, and dentistry; note, however, that this is my opinion, only.

It seems to me that there are many cases of mistaken unlicensed practice brought against massage therapists because of mistakes in identity by investigators. We have experienced cases where investigators arrest several different individuals of foreign origin who happen to be present at a massage establishment and accuse them of practicing there without a license when that person was only there visiting a friend or relative and did not touch any client. Often the visitor and even the licensed professionals there will speak little or no English, therefore being unable to clear up any confusion.

Dentistry is another profession where there is a great deal of unlicensed practice. Often this arises when an individual was a dentist in a foreign county and relocates to the U.S., but is unable to obtain a license. They may set up shop in a home or garage and hold themselves out to a certain group speaking the same foreign language, as able to provide skilled dental services. To me, the number of unlicensed practice cases I have encountered in this profession is largely due to the absence of qualified licensed dentists providing care in our communities, especially to the indigent and immigrant communities.

Charges of unlicensed practice of nursing often arise because of nurses who may have been trained abroad failing to make sure that everyone they work with refers to them as “medical assistants” or whatever other role they are filling. It is very common in doctors’ offices and medical practices to refer to anyone who assists the doctor in any way as “the nurse.” One must be careful if one is not a licensed nurse to correct this mistitling whenever it occurs. We have had multiple cases of a doctor’s competitor or a disgruntled patient filing a complaint that the doctor’s medical assistant was holding himself out to be a nurse when they were not.

To Read the entire DOH Third Quarterly Performance Report for 2020-2021, click here:

http://www.floridahealth.gov/licensing-and-regulation/reports-and-publications/_documents/qpr3-2021.pdf

Remember the Mission of the Florida Department of Health; It is Not to Help YOU.

The QPR emphasizes the same thing you will hear at every professional board meeting if you attend it. That is, the mission of the Florida Department of Health is to protect, promote, and improve the health of all people in Florida and to protect the public. It is not to advocate for or help any individual licensed health professional.

That is one of the reasons I continually tell licensed health professionals that if you want advice on what to do or how to do it legally, don’t call and ask the Department of Health.

First, there is no individual who is authorized to give you advice on what to do or not to do on behalf of any profession, board, or council. Second, there is no individual who is authorized to make decisions on behalf of any professional board or council. A professional board speaks when it meets, discusses an issue, and votes on that issue. That is how decisions are made; not by what one employee may think.

You may send all of your complaints and other hate mail to me at one of the addresses given below.

Contact Health Law Attorneys Experienced with Department of Health Matters and Investigations.

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 (DME) suppliers, medical students and interns, chiropractors, hospitals, ambulatory surgical centers, pain management clinics, nursing homes, and any other health care provider

Our attorneys provide legal representation in Department of Health (DOH) investigations, Drug Enforcement Administration (DEA) investigations, Federal Bureau of Investigation (FBI) investigations, and other types of investigations of health professionals and providers.

To contact The Health Law Firm, please call (407) 331-6620 or Toll-Free (888) 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 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 representation, DOH defense lawyer, DOH investigation, representation for DOH investigations, DOH investigation defense attorney, DOH representation, representation for board licensing complaint, board licensing complaint representation, board licensing complaint lawyer, board representation for healthcare professionals, licensure defense, licensure defense attorney, licensure defense representation, representation for administrative complaint, administrative licensure investigation representation, healthcare license representation, administrative hearing attorney, Agency for Health Care Administration (AHCA) representation, AHCA attorney, AHCA defense lawyer, nurse attorney, representation for nurses, nurse defense lawyer, healthcare attorney, representation for healthcare professionals, Drug Enforcement Administration (DEA) agents, FBI agents, OIG special agents, Medicaid Fraud Control Unit (MFCU) investigators, representation for physicians, The Health Law Firm reviews, reviews for The Health Law Firm

“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 © 2021 The Health Law Firm. All rights reserved.

 

 

 

Review Your Department Of Health Practitioner Profile or it Could Cost You!

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

In 1997, the Florida Legislature passed a statute that requires the Department of Health (DOH) to maintain online practitioner profiles for certain health care professionals. Practitioner profiles are required for medical doctors, osteopathic physicians (DOs), chiropractors (DCs), advanced practice registered nurses (APRNs) and podiatric physicians. The statute specified the required information to be maintained, how it was to be reported, and other requirements dealing with compiling and updating the information in the profiles.

To visit the DOH’s website and learn more about these profiles, click here.

What Information Does the Profile Include?

The profile contains required and optional information from the healthcare provider. Required
information includes:

1. education and training, including other health-related degrees, professional and postgraduate training specialty
2. current practice and mailing addresses
3. staff privileges and faculty appointments
4. reported financial responsibility
5. legal actions taken against the practitioner
6. board final disciplinary action taken against the practitioner
7. any liability claims filed against podiatric physicians which exceed $5,000
8. any liability claims filed against M.D.s and osteopathic physicians which exceed
$100,000

Optional information may include committees/memberships, professional or community
service awards, and publications the practitioner has authored.

These profiles are published on the DOH’s website. They are freely accessible by the public and are frequently used by employers, medical staff committees, and insurance panels to verify information provided by applicants.

Be Sure to Check Your Profile for Accuracy!

If you are a licensed profiled health care practitioner, you should review your profile information frequently and report any corrections to the DOH immediately! By law, you are responsible for updating your profile information within 15 days after a change of an occurrence in each section of the profile.

Unfortunately, information on practitioner profiles is not always 100 percent correct. Oftentimes, the information in a profile is outdated or misreported. The majority of the information in a profile is supposed to be entered through the website by the practitioner personally; however, the DOH is free to add information on its own.

It’s important to note that not all of the information on the practitioner profile is verified by the DOH. To view which information is self-reported, as well as reported by the DOH, click here to view the DOH’s profile guide.

Recently, The Health Law Firm had a client whose employment contract was not renewed due to misreported criminal history information on the DOH practitioner profile. Most troubling was the fact that this information appeared on the profile suddenly; it had not been on the practitioner profile in the past. Furthermore, the information was decades old and had been posted in direct violation of a court order sealing the underlying records.

We have also had cases where information was incorrect, where the same information was repeated several times, or where the information on the profile did not meet the basic requirements for reporting.

Fight False Information on Your Practitioner Profile.

The Health Law Firm has been successful in having the DOH remove criminal history information and other incorrect information from a practitioner profile.

It is imperative that you check your practitioner profile regularly to ensure that it is accurate with respect to the information that you provided and that may have been provided by the DOH. If you find that confidential or incorrect information has been posted to your profile, contact an attorney experienced with dealing with these matters immediately. You never know when your employer, a business associate or potential patient will look up your information on your profile.

Contact Health Law Attorneys Experienced with the Department of Health Matters and Investigations.

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 (DME) suppliers, medical students and interns, chiropractors, hospitals, ambulatory surgical centers, pain management clinics, nursing homes, and any other health care provider

Our attorneys provide legal representation in the Department of Health (DOH) investigations, Drug Enforcement Administration (DEA) investigations, Federal Bureau of Investigation (FBI) 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.

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., Altamonte Springs, FL 32714, Phone: (407) 331-6620.

Keywords: Department of Health investigation representation, DOH defense lawyer, DOH investigation, representation for DOH investigations, DOH investigation defense attorney, DOH representation, representation for board licensing complaint, board licensing complaint representation, board licensing complaint lawyer, board representation for healthcare professionals, licensure defense, licensure defense attorney, licensure defense representation, representation for administrative complaint, administrative licensure investigation representation, healthcare license representation, administrative hearing attorney, Agency for Health Care Administration (AHCA) representation, AHCA attorney, AHCA defense lawyer, nurse attorney, representation for nurses, nurse defense lawyer, healthcare attorney, representation for healthcare professionals, Drug Enforcement Administration (DEA) agents, FBI agents, OIG special agents, Medicaid Fraud Control Unit (MFCU) investigators, representation for physicians, The Health Law Firm reviews, reviews for The Health Law Firm

“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 © 2019 The Health Law Firm. All rights reserved.

You Could Face Steep Repercussions From License Discipline or Resignation After Notice of Investigation

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

Do you have a dental, medical, pharmacy or nursing license in several different states? Do you have a license in more than one health care profession? Have you been notified that an investigation has been opened against you? Are you thinking about resigning your professional license or voluntarily relinquishing such a license? Then you must be aware of the following information.

First, you should never voluntarily relinquish or resign your license after you know that an investigation has been opened or that disciplinary action has been taken against you. Such resignation is considered to be a “disciplinary relinquishment” and is treated the same as if your license had been revoked on disciplinary grounds.

Second, this will be reported out to other states, agencies, to the National Practitioner Data Bank (NPDB), to any certifying bodies for certifications you have and to other reporting agencies (such as the National Council of State Board of Nursing, the National Association of Boards of Pharmacy or the American Board of Internal Medicine). Other states and other professional boards will most likely initiate disciplinary action based upon the first one.

Protect Your Professional License from These Adverse Actions.

The following is a list of some of the adverse actions that you can expect to be taken against you after discipline on your license or after you resign your professional license after receiving notice of investigation:

1. A mandatory report to the National Practitioner Data Base (NPDB) which remains there for 50 years. Note: The Healthcare Integrity and Protection Data Bank or HIPDB recently merged into the NPDB.

2. Must be reported to and included in the Department of Health (DOH) profile that is available to the public online (for those having one), and remains for at least ten years.

3. Any other states or jurisdictions in which the nurse has a license will also initiate an investigation and possible disciplinary action against him or her in that jurisdiction. (Note: I have had two clients who had licenses in seven other states and all, even ones that were inactive or not renewed years ago, initiated action).

4. The Office of the Inspector General (OIG) of the U.S. Department of Health and Human Services (HHS) will take action to exclude the provider from the Medicare Program. If this occurs (and most of these offenses require mandatory exclusion) the provider will be placed on the List of Excluded Individuals and Entities (LEIE) maintained by the HHS OIG.

a. If this happens, you are prohibited by law from working in any position in any capacity for any individual or business, including hospitals, nursing homes, home health agencies, physicians, medical groups, insurance companies, etc., that contract with or bill Medicare or Medicaid. This means, for example, you are prohibited from working as a janitor in a nursing home that accepts Medicare or Medicaid, even as an independent contractor.

b. If this happens, you are also automatically “debarred” or prohibited from participating in any capacity in any federal contracting, and you are placed on the U.S. General Services Administration’s (GSA) debarment list. This means you are prohibited by law from working in any capacity for any government contractor or anyone who takes government funding. This applies, for example, to prevent you from being a real estate agent involved in selling property financed by a government-backed loan, prohibited from working for an electrical company that bids on contracts for government housing projects, working as a school teacher in a public school, etc.

c. If this happens, your state Medicaid Program is required to terminate you “for cause” from the state Medicaid Program. In many states, this is also grounds for revocation of your license.

5. Any profile or reporting system maintained by a national organization or federation (e.g., NURSYS profile maintained by the National Council of State Boards of Nursing, American Medical Association physician profile, or the Federation of State Board of Physical Therapy profile) will include the adverse action in it, generally available to the public.

6. If you are a nurse practitioner or other professional with clinical privileges at a hospital, nursing home, HMO or clinic, action will be taken to revoke or suspend the clinical privileges and staff members if you have such. This may be in a hospital, ambulatory surgical center, skilled nursing facility, staff model HMO or clinic. This will usually be for physicians, physician assistants (PAs), advanced registered nurse practitioners (ARNPs), certified registered nurse anesthetists (CRNAs), nurse midwives or certified nurse anesthetists (CNAs), podiatrists, clinical psychologist or clinical pharmacists.

7. Third party payors (health insurance companies, HMOs, etc.) will terminate the professional’s contract or panel membership with that organization.

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

9. Many employers will not hire you or will terminate your employment if they discover your license has been disciplined in another state.

So, What Should You Do?

– Don’t take the easy way out by immediately relinquishing your license if you are notified you are under investigation.

– Don’t hide your head in the sand by thinking the case will just go away on its own.

– Don’t take the easy way out. If you are innocent of the charges, request a formal hearing and contest the charges; defend yourself.

– Do not request an informal hearing or a settlement agreement in which you admit the facts alleged against you are all true. If you do this, you are “pleading guilty.”

– Do immediately seek the advice of an attorney who has experience in such professional licensing matters and administrative hearings. They are out there, but you may have to search for one. Do this as soon as you get notice of any investigation and especially before you have talked to or made any statement (including a written one) to any investigator.

– Do purchase professional liability insurance that includes legal defense coverage for any professional license investigation against you, whether it is related to a malpractice claim or not. This insurance is cheap and will provide needed legal assistance at the time when you may be out of a job and not have money to hire an attorney. Beware of the insurance policy that only covers professional license defense if it is related to a malpractice claim.

Professional Liability Insurance.

We strongly encourage all licensed health professionals and facilities to purchase their own, independent insurance coverage. Make sure it covers professional license defense under all circumstances. Make sure you have enough coverage to actually get you through a hearing. $25,000 coverage for just professional licensure defense is the absolute minimum you should purchase; $50,000 may be adequate but $75,000 or $100,000 may be what you really need in such a situation. For a few dollars more (and I do mean only a few) you can usually purchase the higher limits.

Also, I will repeat, make sure it covers your legal defense in an administrative disciplinary proceeding against your license, even if there is no malpractice claim filed against you or likely to be filed against you.

We also recommend that you purchase coverage through an insurance company that allows you to select your own attorney and does not make you use one that the insurance company picks for you.

Companies we have encountered in the past who provide an inexpensive top quality insurance product for professional license defense costs include: CPH & Associates Insurance, Nurses Service Organization (NSO) Insurance, Healthcare Providers Organization (HPSO) Insurance and Lloyd’s of London Insurance.

Contact Experienced Health Law Attorneys.

The Health Law Firm routinely represents physicians, nurses, pharmacists, pharmacies, dentists, mental health counselors, massage therapists and other health providers in investigations, regulatory matters, licensing issues, litigation, inspections and audits involving the Drug Enforcement Administration (DEA), Federal Bureau of Investigation (FBI), Department of Health (DOH) and other law enforcement agencies. Its attorneys include those who are board certified by The Florida Bar in Health Law as well as licensed health professionals who are also attorneys.

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: Department of Health investigation representation, DOH defense lawyer, DOH investigation, representation for DOH investigations, DOH investigation defense attorney, DOH representation, representation for board licensing complaint, board licensing complaint representation, board licensing complaint lawyer, board representation for healthcare professionals, licensure defense, licensure defense attorney, licensure defense representation, representation for administrative complaint, administrative licensure investigation representation, administrative hearing attorney, Agency for Health Care Administration (AHCA) representation, AHCA attorney, AHCA defense lawyer, nurse attorney, representation for nurses, nurse defense lawyer, healthcare attorney, representation for healthcare professionals, Drug Enforcement Administration (DEA) agents, FBI agents, OIG special agents, Medicaid Fraud Control Unit (MFCU) investigators, representation for physicians, The Health Law Firm reviews, reviews for The Health Law Firm

“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 © 2019 The Health Law Firm. All rights reserved.

Although the Law Stacks the Deck Against You, Leaving a Foreign Body in a Patient Doesn’t Always Mean Negligence or Discipline

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

Leaving a foreign object (sometimes referred to as a “retained foreign body” or “RFB”) in a patient, such as a sponge, clamp, forceps, surgical needle, guide wire, part of a surgical instrument or other paraphernalia commonly used in surgical, examination, or other diagnostic procedures, does not necessarily mean that the physician has committed an act of negligence or that the physician will be disciplined by the Board of Medicine (BOM) or Department of Health (DOH). There are many defenses in such a case and many incidents which do not constitute negligence. However, as a preliminary matter, the law does seem to stack the deck against the physician in such cases.

Medical Negligence Statutes.

Section 766.102(3)(b), Florida Statutes (previously Section 768.45, Florida Statutes),
states:

The existence of a medical injury does not create any inference or presumption of negligence against a health care provider, and the claimant must maintain the burden of proving that an injury was proximately caused by a breach of the prevailing professional standard of care by the health care provider. . . . However, the discovery of the presence of a foreign body, such as a sponge, clamp, forceps, surgical needle, or other paraphernalia commonly used in surgical, examination, or diagnostic procedures, shall be prima facie evidence of negligence on the part of the health care provider.

Grounds for Disciplinary Action Against a License.

Chapter 456, Florida Statutes, applies to all health professionals who are licensed by the Florida Department of Health (DOH). Section 456.072(1), Florida Statutes, which provides the grounds for possible discipline of any licensed health professional contains a subsection (cc), which provides the following as a basis for disciplinary action:

Leaving a foreign body in a patient, such as a sponge, clamp, forceps, surgical needle, or other paraphernalia commonly used in surgical, examination, or other diagnostic procedures. For the purposes of this paragraph, it shall be legally presumed that retention of a foreign body is not in the best interest of the patient and is not within the standard of care of the profession, regardless of the intent of the professional.

Applicable to Others than Just Surgeons and Physicians.

We typically envision objects such as clamps or lap pads (“sponges”) being left in a patient after surgery. Note, however, these provisions of the law could apply equally to a nurse practitioner’s leaving a broken needle in a patient or a dentist’s leaving a burr or broken probe in a patient.

Res lpsa Loquitur.

Many surgeons and other physicians who are charged with such an allegation just give up, do not defend themselves, and agree to accept punishment from their professional board. The statutes quoted above are, basically, a restatement of the common law rule known as “res ipsa loquitur in medical malpractice cases.

The term “medical injury” in the statute refers to an injury sustained as a direct result of medical treatment or diagnosis, and does not encompass injuries totally unrelated thereto. Thus, when a plaintiff establishes that the injury is outside the scope of medical treatment or diagnosis, and the facts and circumstances attendant to the injury are such that, in light of past experience, negligence is the probable cause and the defendant is the probable actor, the doctrine of res ipsa loquitur is applicable.

In Florida, there is a Florida law that is set forth within Chapter 456, Florida Statutes. Chapter 456 of Florida Statutes applies to all health professionals who are licensed by the Florida Department of Health (DOH).

Many surgeons and other physicians who are charged with such an allegation just give up, do not defend themselves, and agree to accept punishment from their professional board.

Florida Cases on Retained Foreign Objects.

Archer v. Maddux, 645 So. 2d 544 (Fla. 1st DCA 1994) a surgeon left a tube in a patient after surgery by accident. The trial court dismissed the case because there was no affidavit from a medical expert corroborating that medical negligence had occurred that had been filed before the running of the statute of limitations. The Court of Appeal upheld the dismissal of the case.

DeAlmeida v. Graham, 524 So. 2d 666 (Fla. 4th DCA 1987), a surgeon left a Kelly clamp inside of a patient.

Moreover, the provision of Fla. Stat. ch. 766.102(4) that discovery of a “foreign body” such as surgical paraphernalia is prima facie evidence of negligence, is clearly inapplicable in a case where the mesh was intentionally placed in patient’s body as part of her treatment, and like screws, plates, pacemakers, and/or artificial joints was intended to permanently remain in her body. (Kenyon v. Miller, 756 So. 2d 133 (Fla. 3d DCA 2000)

Smith v. Zeagler, 116 Fla. 628, 157 So. 328 (1934)
It is negligence per se for a surgeon to leave a sponge in an abdominal incision made in his patient in the course of his performance of a surgical operation upon such patient. The burden of showing due care is upon a surgeon who leaves a sponge enclosed in a wound after the performance of an operation, and he cannot relieve himself from liability unless the sponge was so concealed that reasonable care on his part would not have disclosed it, and conditions were such that, in his professional judgment, a special exploration for the sponge would have endangered the safety of the patient. Where a patient’s condition is critical and the paramount requirement is complete the operation in the shortest possible time, the failure to remove a sponge may be an accidental and excusable ship or inadvertence that is not actionable negligence, depending upon the circumstances of the case, the burden being on the physician to show to the satisfaction of the jury that the particular act was not blame-worthy because of the supervening necessity to complete the operation without delay.

The authorities are legion to the effect that it is negligence [***3] per se for a surgeon to leave a sponge in an abdominal incision made in his patient in the course of his performance of a surgical operation upon such patient. Ruth v. Johnson, 172 Fed. 191; Reeves v. Lutz, 179 Mo. App. 61, 162 S.W. Rep. 280; Rayburn v. Day, 126 Oregon 135, 268 Pac. Rep. 1002; Wynne
v. Harvey, 96 Wash. 379, 165 Pac. Rep. 67; Harris v. Fall, 177 Fed. 79, 27 L.R.A (N.S.) 1174; Moore v. Ivey (Texas Civ. App.), 264 S.W. Rep. 283; 21 R.C.L. 388.

The burden of showing due care is upon a surgeon who leaves a sponge enclosed in a wound after the performance of an operation, and he cannot relieve himself from liability unless the sponge was so concealed that reasonable care on his part would not have disclosed it, and conditions were such that, in his professional judgment, a special exploration [*631] for the sponge would have endangered the safety of the patient. Davis v. Kerr, 239 Pa. 351, 86 Atl. Rep. 1007, 46 L.R.A. (N.S.) 611.


Adverse Consequences of Accepting Discipline in a RFB Case.

Many health professionals agree to accept punishment from their professional board without realizing the harsh consequences. Any disciplinary action will be reported to the National Practitioner Data Bank (NPDB). If you are reported to the NPDB or another health care data base, you could have issues obtaining hospital privileges, state licenses, you may be excluded from the Medicare and Medicaid Programs, and it could also affect your ability to work in the health care field. Additionally, similar actions will be taken against any licenses you have in other states.

Shared Responsibility Between Surgeon and Hospital Staff.

Most hospitals have internal policies and procedures which make it a shared responsibility between the surgeon and the hospital’s staff (especially surgical technicians and operating room nurses) to safeguard against leaving foreign objects in patients.

The Health Law Firm has successfully defended physicians and other licensed health care professionals in administrative investigations and patients complaints relating to retained foreign bodies.

For more information on how we can help you in situations such as this, visit our Areas of Practice page on our website.

Contact Experienced Health Law Attorneys.

The Health Law Firm routinely represents pharmacists, pharmacies, physicians, nurses and other health providers in investigations, regulatory matters, licensing issues, litigation, inspections and audits involving the Drug Enforcement Administration (DEA), Federal Bureau of Investigation (FBI), Department of Health (DOH) and other law enforcement agencies. Its attorneys include those who are board certified by The Florida Bar in Health Law as well as licensed health professionals who are also attorneys.

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: Representation for licensed healthcare professionals, National Practitioner Data Bank, NPDB defense lawyer, NPDB representation, Department of Health investigation representation, DOH defense lawyer, DOH investigation, representation for DOH investigations, DOH investigation defense attorney, DOH representation, representation for board licensing complaint, board licensing complaint representation, board licensing complaint lawyer, board representation for healthcare professionals, licensure defense, licensure defense attorney, licensure defense representation, representation for administrative complaint, administrative licensure investigation representation, administrative hearing attorney, Agency for Health Care Administration (AHCA) representation, AHCA attorney, AHCA defense lawyer, nurse attorney, representation for nurses, nurse defense lawyer, healthcare attorney, representation for healthcare professionals, Drug Enforcement Administration (DEA) agents, FBI agents, OIG special agents, Medicaid Fraud Control Unit (MFCU) investigators, representation for physicians, The Health Law Firm reviews, reviews for The Health Law Firm

“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 © 2019 The Health Law Firm. All rights reserved.

Review Your Florida DOH Practitioner Profile or it Could Cost You!

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

In 1997, the Florida Legislature passed a statute that requires the Department of Health (DOH) maintain online practitioner profiles for certain health care professionals. Practitioner profiles are required for medical doctors, osteopathic physicians (DOs), chiropractors (DCs), advanced practice registered nurses (APRNs) and podiatric physicians. The statute specified the required information to be maintained, how it was to be reported, and other requirements dealing with compiling and updating the information in the profiles.

To visit the DOH’s website and learn more about these profiles, click here.

What Information Does the Practitioner Profile Include?

The profile contains required and optional information from the healthcare provider. Required
information includes:

1. education and training, including other health-related degrees, professional and post graduate training specialty
2. current practice and mailing addresses
3. staff privileges and faculty appointments
4. reported financial responsibility
5. legal actions taken against the practitioner
6. board final disciplinary action taken against the practitioner
7. any liability claims filed against podiatric physicians which exceed $5,000
8. any liability claims filed against M.D.s and osteopathic physicians which exceed
$100,000

Optional information may include committees/memberships, professional or community
service awards, and publications the practitioner has authored.

These profiles are published on the DOH’s website. They are freely accessible by the public and are frequently used by employers, medical staff committees, and insurance panels to verify information provided by applicants.

Be Sure to Check Your Own Profile for Accuracy.

If you are a licenced profiled health care practitioner, you should review your profile information frequently and report any corrections to the DOH immediately! By law, you are responsible for updating your profile information within 15 days after a change of an occurrence in each section of the profile.

Unfortunately, information on practitioner profiles is not always 100 percent correct. Oftentimes, the information in a profile is outdated or misreported. The majority of the information in a profile is supposed to be entered through the website by the practitioner personally; however, the DOH is free to add information on its own.

It’s important to note that not all of the information on the practitioner profile is verified by the DOH. To view which information is self-reported, as well as reported by the DOH, click here to view the DOH’s profile guide.

Recently, The Health Law Firm had a client whose employment contract was not renewed due to misreported criminal history information on the DOH practitioner profile. Most troubling was the fact that this information appeared on the profile suddenly; it had not been on the practitioner profile in the past. Furthermore, the information was decades old and had been posted in direct violation of a court order sealing the underlying records.

We have also had cases where information was incorrect, where the same information was repeated several times, or where the information on the profile did not meet basic requirements for reporting.

Fight Misreported Information on Your Practitioner Profile.

The Health Law Firm has been successful in having the DOH remove criminal history information and other incorrect information from a practitioner profile.

It is imperative that you check your practitioner profile regularly to ensure that it is accurate with respect to the information that you provided and that may have been provided by the DOH. If you find that confidential or incorrect information has been posted to your profile, contact an attorney experienced with dealing with these matters immediately. You never know when your employer, a business associate or potential patient will look up your information on your profile.

Contact Health Law Attorneys Experienced with Department of Health Matters and Investigations.

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 (DME) suppliers, medical students and interns, chiropractors, hospitals, ambulatory surgical centers, pain management clinics, nursing homes and any other health care provider

Our attorneys provide legal representation in Department of Health (DOH) investigations, Drug Enforcement Administration (DEA) investigations, Federal Bureau of Investigation (FBI) 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.

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 representation, DOH defense lawyer, DOH investigation, representation for DOH investigations, DOH investigation defense attorney, DOH representation, representation for board licensing complaint, board licensing complaint representation, board licensing complaint lawyer, board representation for healthcare professionals, licensure defense, licensure defense attorney, licensure defense representation, representation for administrative complaint, administrative licensure investigation representation, healthcare license representation, administrative hearing attorney, Agency for Health Care Administration (AHCA) representation, AHCA attorney, AHCA defense lawyer, nurse attorney, representation for nurses, nurse defense lawyer, healthcare attorney, representation for healthcare professionals, Drug Enforcement Administration (DEA) agents, FBI agents, OIG special agents, Medicaid Fraud Control Unit (MFCU) investigators, representation for physicians, The Health Law Firm reviews, reviews for The Health Law Firm

“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 © 2019 The Health Law Firm. All rights reserved.

In Florida You Have Fifth Amendment Rights in a Department of Health Investigation of Your License

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

If you are contacted by a Florida Department of Health investigator, did you know that you are not required to make a statement or give any information that can be used against you?  If you are being investigated you have a right to refuse to speak with an investigator pursuant to the Fifth Amendment of the U.S. Constitution and the equivalent rights given by the Florida Constitution, Article 1, Section 9.  However, because the Miranda decision does not apply to administrative proceedings, including licensure investigations, the DOH investigator does not have to inform you of this.

In some states other than Florida, the state’s law is such that a nurse, physician, dentist or other licensed health care professional is required to “cooperate” with the investigation, even though he or she may be punished or lose their license as a result.  THIS IS NOT THE CASE IN FLORIDA.

Florida Licensing Investigations Are Considered to Be “Penal” or “Quasi-criminal” in Nature.

Florida licensing investigations are considered to be “penal” or “quasi-criminal” in nature.  In Florida, a professional’s license is considered to be a property right.  So you also have the constitutional right not to be deprived of it without due process of law.  Due Process of law is guaranteed not only by the Florida and U.S. constitutional provisions cited above, but also by the Fourteenth Amendment of the U.S. ConstitutionDue process of law includes the right to be represented by an attorney in any proceedings that might be initiated that may result in your losing your license.

In Florida, a long history of legal cases has resulted in the common law rule that administrative proceedings that may result in loss of a license must afford all of the protections that a criminal defendant would have in a criminal case.

Case Law in Florida.

In a 2004 case involving the Florida Department of Health, the Florida First District Court of Appeal stated:

Initially, it should not be forgotten that because professional disciplinary statutes are penal in nature, they must be strictly construed with any ambiguity interpreted in favor of the licensee. See Ocampo v. Dep’t of Health, 806 So. 2d 633, 634 (Fla. 1st DCA 2002);  Elmariah v. Dep’t of Prof. Reg., Board of Med., 574 So. 2d 164 (Fla. 1st DCA 1990).

Cone v. Dep’t of Health, 886 So. 2d 1007, 1011 (Fla. 1st DCA 2004).

The Florida Supreme Court confirmed that a licensee could assert a Fifth Amendment right in administrative proceedings in the 1973 case of State ex rel. Vining v. Florida Real Estate Commission, 281 So.2d 487 (1973).

In Vining a real estate broker was charged by the Florida Real Estate Commission of violating the Real Estate License Law.  Id. at 488.  The broker filed a sworn answer, as he was required to do under Florida Statute Section 475.30(1).  Id.  The broker later argued that the Florida statute violated his right against self-incrimination as guaranteed by the Fifth Amendment to the U.S. Constitution and Article I, Section 9 of the Florida Constitution.  Id.

The Florida Supreme Court agreed, holding that “the right to remain silent applies not only to the traditional criminal case, but also to proceedings ‘penal’ in nature in that they tend to degrade the individual’s professional standing, professional reputation or livelihood.”  Id. at 491 (citing Spevack v. Klein, 385 U.S. 511, 87 S.Ct. 625, 17 L.Ed.2d 574 (1967);  Stockham v. Stockham, 168 So. 2d 320 (Fla. 1964)).  More recently, courts have reaffirmed that Vining remains good law in Florida.  See Best Pool & Spa Service Co., Inc. v. Romanik, 622 So. 2d 65, 66 (Fla. 4th DCA 1993);  Scott v. Department of Professional Regulation, 603 So. 2d 519, 520 (Fla. 1st DCA 1992).

In Best Pool & Spa Service Co., Inc. v. Romanik, 622 So. 2d 65, 66 (Fla. 4th DCA 1993), for example, the Court of Appeal reiterated the ability of a defendant to claim the Fifth Amendment privilege in an administrative proceeding.  Best Pool involved a pool owner filing actions for negligence and breach of contract against a pool maintenance contractor and its president.  The circuit court required the president to answer questions at his deposition about his certifying to the county, in an application for license, that the contractor had liability insurance.  The Court of Appeal ruled that the president was allowed to assert his Fifth Amendment privilege with regard to questions on this issue.  The court stated in Best Pool: “requiring Kassover, the president, to answer these questions does violate his right against self incrimination, which applies not only to criminal matters but also administrative proceedings such as licensing.  Id. at 66.

There are many other cases which have held the same.

You Must Be Extremely Cautious When Dealing with a DOH Investigator or Any Investigator.

If you receive notice that a DOH disciplinary investigation has been opened against you, you may not even realize it or understand how serious the consequences may be.  The notice comes in the form of a simple letter or, more often nowadays, a phone call, followed by a letter.  The letter will be on Florida Department of Health letterhead and will, in most cases,  be signed by a person whose job title is “Medical Malpractice Investigator,” “Quality Assurance Investigator” or some other title that might throw you off.

If you think you are giving information to be used in connection with a true quality assurance matter, such as would be confidential and privileged in a hospital or health institution, think again.  This is an investigation that could result in your having to pay thousands of dollars in fines, thousands of dollars in investigative costs and suspension or loss of your license.  Worse yet are the other consequences that having discipline on your professional license will bring, including difficulty in obtaining employment, reports being made to national data banks, etc.  Please see some of the other articles we have on our blog and on our website about all of the unforeseen consequences of discipline on your license.

Have You Been Told the Investigation Is Not Aimed at You?  Watch Out!

Even if the investigator attempts to ensure you that the investigation is not aimed at you, watch out!  It may not be aimed at you today, but it may be aimed at you tomorrow.  Additionally, even if the particular investigation that you are being questioned about is not directed against you, there may be another investigation that has been opened against you.  Your statement can and will be sued against you in that other investigation.

I was told by a DOH investigator one time that my clients (who were a director of nursing (DON), assistant director of nursing (ADON), an administrator and a medical director) were not being investigated, but that another health professional was.  My clients cooperated and gave statements for use in the investigation of the other person.  A short time later, additional investigations were opened against all of them, too.  Fortunately we eventually had all of the charges against all of them dismissed.  But I have not trusted investigators since then.

Don’t Wait Until it is Too Late; Consult with a Health Law Attorney Experienced in Representing Health Professionals Now.

The lawyers of The Health Law Firm routinely represent nurses, ARNPs, CRNAs, physicians, dentists, pharmacists, psychologists, mental health counselors, social workers, massage therapists, medical groups, clinics, pharmacists, pharmacies, home health agencies, nursing homes, assisted living facilities, and other healthcare providers in licensing investigations, regulatory matters, in board actions and in administrative hearings.  Call now at (407) 331-6620 or (850) 439-1001 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.

Disclaimer: Please note that this article represents our opinions based on our many years of practice and experience in this area of health law. You may have a different opinion; you are welcome to it. This one is mine.  This article is for informational purposes only; it is not legal advice.

Advice for All Massage Therapists: Please Talk to a Lawyer Before You Talk to the Department of Health (DOH) Investigator

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

Massage therapists, I beseech you: please do not talk to a Department of Health (DOH) investigator until you have talked to a health lawyer who is experienced with DOH investigations and board licensing complaints.  Do not answer or respond to even the most basic questions about where you work now, what your address is or if you know patient x, until consulting with counsel.

Admitting to Anything May Hurt Your Case.

We are routinely consulted by massage therapists and other healthcare providers for representation after they have discussed the case and after it is too late to undo the damage they have caused to themselves. Often they do not understand the seriousness of the matter or the possible consequences, until it is too late. Admitting to even the most basic facts causes damage to any possible defense.

Administrative Licensure Investigations are “Semi-Criminal.”

The vast majority of massage therapists and even most attorneys do not realize that DOH investigations concerning complaints against a massage therapist’s license are considered to be “penal” or “quasi-criminal” proceedings.  This means the same laws and constitutional rights apply to them as apply to criminal investigations.  However, since they are also administrative proceedings and not strictly criminal proceedings, investigators do not need to advise you of your Miranda rights or tell you you have the right to remain silent, the right to an attorney, etc.

In any criminal investigation a good criminal defense attorney would always tell you “Do not talk to the investigator” and “Tell the investigator you have a lawyer.”

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

DOH investigators, police investigators, FBI investigators and other law enforcement officers, are well trained in investigative techniques and how to get information out of suspects.  Often the approach used is to catch you by surprise before you even know there is an investigation and the investigation is of you.  Another technique used is to lull you into a false sense of security that the investigation is about someone or something else and not you.  Another investigative technique is to convince you that you need to “Tell your side of the story” so that the investigation is accurate.  Yet another is that “Things will go much better for you if you cooperate.”  None of these things are true.

However, if it is truly in your best interest to cooperate or to make a statement, after you consult with your attorney, your legal counsel will surely advise you to do this.  The investigator should not mind waiting until you consult your attorney.  However, many will go to extremes to convince you that you don’t need an attorney and shouldn’t get an attorney.

Consult an Experienced Health Law Attorney.

The attorneys of The Health Law Firm are experienced in dealing with DOH investigators, AHCA surveyors, Drug Enforcement Administration (DEA) agents, FBI agents, police and sheriff’s office investigators, OIG special agents (S/As) and Medicaid Fraud Control Unit (MFCU) investigators. 

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

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.

Disclaimer: Please note that this article represents our opinions based on our many years of practice and experience in this area of health law. You may have a different opinion; you are welcome to it. This one is mine.

Note: This article is for informational purposes only; it is not legal advice.

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

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

Massage Therapists Needs Good Professional Liability Insurance, Too

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

Whether you’re an independent contractor, an employee of a chiropractor, physician or spa, or you travel to clients’ homes, insurance is essential for all massage therapists. Not only can professional liability insurance protect you in the event of a lawsuit, but it may also pay your legal defenses in the event of a complaint against your license to practice or for other legal problems. In Florida, it is not mandatory for a massage therapist to have professional liability insurance. However, since it is so cheap, we always recommend buying coverage. It’s a small price to pay to protect your livelihood. But be sure it covers the investigation of your license.

It is now common to be able to find professional liability insurance that provides excellent coverage and excellent benefits, but costs less than a dollar a day. One policy I recently reviewed for a massage therapist included payment of all attorney’s fees and costs for defense of HIPAA privacy complaints, for defense of any complaints or investigations of the therapist’s license and for legal representation at any deposition.

The Most Important Reason to Buy Insurance: To Provide Legal Protection for a Massage Therapist’s License.

The primary reason a professional liability policy should be purchased is that this type of insurance usually includes coverage for legal defense of licensing and disciplinary action commenced against a massage therapist. It’s important to note that many massage therapists’ liability insurance includes this coverage automatically, but some policies may not. Some companies may offer this type of coverage separately to be purchased for a small additional premium.

License defense coverage pays the legal fees associated with defending a massage therapist when an investigation is initiated that may result in action against the massage therapist’s license or in administrative disciplinary action. Coverage is usually available from the time the massage therapist receives written notice that an investigation by a state agency has been initiated. It will also cover formal administrative hearings before an administrative law judge.

You should buy this coverage now, when you don’t need it. Otherwise, when you do need it, it will be too late after the problem arises.

Please Think About These Points When Buying Liability Protection.

When deciding on which professional liability insurance plan to purchase, the massage therapist should inquire as to the extent of coverage for licensing and disciplinary defense coverage. Some professional liability insurers have a “broad form” of coverage which may provide legal defense for the massage therapist in almost any type of administrative action. Other companies limit coverage to only actions that may result in disciplinary action against the massage therapist’s license. Still others provide no coverage at all except for lawsuits in professional negligence cases. The massage therapist should always attempt to get the broadest coverage available and be sure it covers disciplinary defense and licensure defense expenses.

The massage therapist should also question as to whether or not he or she will be allowed to select his or her own attorney. Many insurance companies have contracts with certain law firms to provide legal services for a reduced fee. The insurance company may require you to use one of its own contracted attorneys or in-house attorneys which it employs directly. Given the limited number of attorneys with experience in handling massage therapy law issues, it is advised to obtain coverage through a company which allows the massage therapist to choose his or her own attorney, especially for license defense.

The most important reason to purchase professional liability insurance is for the licensure defense coverage. A massage therapist does not want to risk losing his/her license because he/she was unsuccessful at defending in an investigation or did not have the resources to do so.

Question Your Coverage – Get Answers in Writing.

Since there are many different insurance companies out there selling professional liability insurance, it is important to be sure of exactly what is covered and what is not covered. Some companies provide “broad form” coverage, providing coverage for everything I discussed above, automatically. See Healthcare Provider’s Service Organization (HPSO) Insurance for example.

Other companies will provide this coverage as a “rider” for a small additional premium. Some insurers do not sell it at all, so you will have to buy it elsewhere. If you are in doubt as to your coverage, ask and get the answer in writing.

Insurance agents typically deal with a number of insurance companies. If you are using an insurance agent, be sure to specify exactly what you want. A good agent will be able to find it for you.

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

Legal representation is costly. To defend a simple case involving a complaint made against you, whether valid or not, can range from $3,000 to $25,000 or more. A case involving a formal hearing (similar to a trial) can cost much more than you imagine. If you are not independently wealthy and cannot afford a legal defense, you may be forced to accept discipline from the Board of Massage Therapy, even if you are completely innocent.

The rules and procedures in administrative licensing cases are not the same as cases in civil and criminal courts. An insurance policy that provides licensure defense will help the massage therapist to have the financial resources to seek out a health law attorney experienced in disciplinary cases and to obtain a fair hearing.

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

You may remember in September of 2012, the Florida Secretary of Health signed 161 emergency suspension orders (ESOs) for massage therapists in Florida. The suspension orders were aimed at massage therapists who allegedly obtained their licenses to practice through a transcript-buying scandal at the Florida College of Natural Health. Many of these massage therapists are still fighting to keep their licenses. This is just one instance where having professional liability insurance can help save a health care professional’s livelihood. You can read more on the suspension of the 161 massage therapists’ licenses by clicking here.

Contact Health Law Attorneys Experienced in Representing Massage Therapists.

The attorneys of The Health Law Firm provide legal representation to massage therapists in Department of Health (DOH) investigations, licensing matters and other types of investigations of health professionals and providers.

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

Comments?

As a massage therapist, do you have professional liability insurance? Why or why not? 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.

Please, Please, Please Do NOT Talk to the Department of Health (DOH) Investigator

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

Massage therapists, I beseech you: please do not talk to a Department of Health (DOH) investigator until you have talked to a health lawyer who is experienced with DOH investigations and board licensing complaints. Do not answer or respond to even the most basic questions about where you work now, what your address is or if you know patient x, until consulting with counsel.

Admitting to the Simplest Facts May Harm You.

We are routinely consulted by massage therapists and other healthcare providers for representation after they have discussed the case and after it is too late to undo the damage they have caused to themselves. Often they do not understand the seriousness of the matter or the possible consequences, until it is too late. Admitting to even the most basic facts causes damage to any possible defense.

Administrative Licensure Investigations are “Quasi-Criminal.”

The vast majority of massage therapists and even most attorneys do not realize that DOH investigations concerning complaints against a massage therapist’s license are considered to be “penal” or “quasi-criminal” proceedings. This means the same laws and constitutional rights apply to them as apply to criminal investigations. However, since they are also administrative proceedings and not strictly criminal proceedings, investigators do not need to advise you of your Miranda rights or tell you you have the right to remain silent, the right to an attorney, etc.

In any criminal investigation a good criminal defense attorney would always tell you “Do not talk to the investigator” and “Tell the investigator you have a lawyer.”

Investigators’ Techniques Try to Get You to Not Consult a Lawyer.

DOH investigators, police investigators, FBI investigators and other law enforcement officers, are well trained in investigative techniques and how to get information out of suspects. Often the approach used is to catch you by surprise before you even know there is an investigation and the investigation is of you. Another technique used is to lull you into a false sense of security that the investigation is about someone or something else and not you. Another investigative technique is to convince you that you need to “Tell your side of the story” so that the investigation is accurate. Yet another is that “Things will go much better for you if you cooperate.” None of these things are true.

However, if it is truly in your best interest to cooperate or to make a statement, after you consult with your attorney, your legal counsel will surely advise you to do this. The investigator should not mind waiting until you consult your attorney. However, many will go to extremes to convince you that you don’t need an attorney and shouldn’t get an attorney.

 

Consult an Experienced Health Law Attorney.

The attorneys of The Health Law Firm are experienced in dealing with DOH investigators, AHCA surveyors, Drug Enforcement Administration (DEA) agents, FBI agents, police and sheriff’s office investigators, OIG special agents (S/As) and Medicaid Fraud Control Unit (MFCU) investigators. To contact The Health Law Firm, please call (407) 331-6620 or (850) 439-1001 and visit our website at www.TheHealthLawFirm.com.

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.

Disclaimer: Please note that this article represents our opinions based on our many years of practice and experience in this area of health law. You may have a different opinion; you are welcome to it. This one is mine.

Note: This article is for informational purposes only; it is not legal advice.

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