After Discipline on Your Massage Therapy License or Resignation of a Massage Therapy License After Notice of Investigation, What Happens Next?
By George F. Indest III, J.D., M.P.A., LL.M., Board Certified by The Florida Bar in Health Law
Do you have massage therapy licenses in several states? Do you have a license in more than one health profession? Have you been notified that an investigation has been opened against you? Are you thinking about resigning or voluntarily relinquishing your massage therapy license? If you answered yes to any of these questions, then continue reading.
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 a resignation is considered to be a “disciplinary relinquishment.” It is treated the same as if your license had been revoked on disciplinary grounds.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) and to any certifying bodies for certifications you have. Other states and other professional boards will most likely initiate disciplinary action as well.
Beware of These Adverse Actions That Can be Taken Against You.
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 massage therapy license:
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 online and remains there for at least ten years.
3. Any other states or jurisdictions in which the massage therapist has a license will also initiate 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 massage therapy license.
5. Any profile or reporting system maintained by a national organization or federation will include the adverse action in it, generally available to the public.
6. If you have clinical privileges at a hospital, nursing home, HMO or clinic, action will be taken to revoke or suspend the clinical privileges and staff membership. This may be in a hospital, ambulatory surgical center, skilled nursing facility, staff model HMO or clinic.
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.
Tips to Follow if You are Under Investigation.
– Don’t immediately relinquishing your license if you are notified you are under investigation.
– Don’t think the case will just go away on its own.
– If you are innocent, 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.
Keep This Information in Mind When Purchasing 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 you can usually purchase the higher limits.
Also, verify it covers your legal defense in an administrative disciplinary proceeding against your license, even if there is no malpractice claim 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, Healthcare Providers Organization (HPSO) Insurance and Lloyd’s of London Insurance.
Contact Health Law Attorneys Experienced in the Representation of Massage Therapists.
The attorneys of The Health Law Firm provide legal representation to massage therapists in Department of Health (DOH) investigations, licensing matters and other types of investigations of health professionals and providers.
To contact The Health Law Firm, please call (407) 331-6620 or (850) 439-1001 and visit our website at www.TheHealthLawFirm.com.
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.
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