massage therapist investigation | The Health Law Firm Blog

Types of Disciplinary Actions Taken By the Board of Massage Therapy

By Castillana F. Duvernay, J.D.

The Florida Board of Massage Therapy can take disciplinary actions against you and your massage establishment if you are not adhering to the rules and regulations set forth by the Board of Massage Therapy and the statutes that govern the practice of massage.

We see common themes and issues that arise at Board of Massage Therapy meetings. This blog will highlight some of these issues and provide tips on how you can avoid being disciplined.

The Practice Act for Massage Therapists Requires Disclosure of Prior Disciplinary History.

If you did not disclose your prior disciplinary history (prior criminal conviction, prior discipline on a professional license) on your application, this may subject you to an administrative complaint by the Florida Department of Health and the Board of Massage Therapy.

Not disclosing disciplinary history information is a violation of Section 480.046(1)(p), Florida Statutes, and Section 480.041(6), Florida statutes. It is imperative that you answer the history questions on your application truthfully. Answering the questions truthfully will help speed up your application.

Licensed Massage Establishment.

In Florida, the practice of massage therapy is governed by Florida Statutes. The Department of Health is the umbrella agency that is charged with enforcing the laws and rules and is over the Board of Massage Therapy.

It is a felony offense to practice, attempt to practice, or offer to practice a regulated healthcare profession, including massage therapy, without possessing a valid license. Reflexology is included under massage therapy and requires a license in Florida.

Working at a massage parlor that isn’t duly licensed is a violation of Section 480.043(1), Florida Statutes, which states: “No massage establishment shall be allowed to operate without a license granted by the department in accordance with the rules adopted by the board.”

Before working for a massage establishment or opening up your own massage parlor, it is imperative that you have the proper documentation to show that you are a duly licensed massage establishment as required by Section 480.043, Florida Statutes. If you do not have the proper documents, the ramifications can be severe. This can lead to complaints being filed against you and the establishment which may lead to arrest by law enforcement, a Uniform Unlicensed Activity Citation (fine), or the subject will be issued a Cease and Desist letter.

Education Discrepancies.

Prior to attending a massage school, make sure it is a Board-approved massage school. One of the ways to do this is to request information about the accreditation of the school from the school staff or its designated accrediting agency. Alternatively, you may go to the Florida Massage Therapy website and search for a list of Florida approved Massage Schools.

The Board of Massage Therapy has a Massage School Approval Requirements Checklist and Information on their website that you can use as guide to help you decide if the school is following the guidelines set forth by the Board of Massage Therapy. In addition, the Board of Massage Therapy has a closed program list showing you which schools are closed and no longer operating. Furthermore, they also have a list of approved schools. Of course with each of these options, it is always best practice to contact the board of massage therapy to inquire about a school that you may be interested in attending.

Sexual Misconduct and Sexual Activity.

Sexual misconduct and sexual activity has been a hot topic for the board for several years. Engaging in sexual misconduct with a client or patient is a violation of Section 480.0485, Florida Statutes.

It is important that you do not exceed the boundaries of the massage that you are performing. Follow the generally accepted treatment of massage therapy patients. Do not accept offers from anyone, and don’t offer extra services to anyone that is not a part of the listed services offered by the massage establishment. Exceeding the scope of the massage will not only lead to disciplinary action by the board of massage therapy, but it may lead to a criminal record.

Displaying Licensure.

Failure to conspicuously display establishment license and massage therapist license may lead to disciplinary action. It is extremely important that upon opening your own massage parlor that you place all of your licenses in a place where it can be seen.

Procedures for Reporting Human Trafficking.

Not having procedures in place for reporting suspected human trafficking may lead to disciplinary action. Pursuant to Section 480.043(13), Florida Statutes, massage establishments must implement a procedure for reporting suspected human trafficking to the National Human Trafficking Hotline or to a local law enforcement agency. A sign detailing this reporting procedure must be posted in a conspicuous place in the establishment that is accessible to employees.

Contact Health Law Attorneys Experienced in Representing Massage Therapists and Other Healthcare Professionals.

The attorneys of The Health Law Firm provide legal representation to massage therapists in Department of Health investigations and other types of investigations of health professionals and providers. The Health Law Firm routinely represents massage therapists, dentists, nurses, physicians, medical groups, clinics, and other healthcare providers in personal and facility licensing issues.

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: Castillana F. Duvernay, J.D. is a new lawyer 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, Suite 1000, Altamonte Springs, FL 32714, Phone: (407) 331-6620 or Toll-Free: (888) 331-6620.

Current Open Positions with The Health Law Firm. The Health Law Firm always seeks qualified individuals interested in health law. Its main office is in the Orlando, Florida, area. If you are a current member of The Florida Bar or a qualified professional who is interested, please forward a cover letter and resume to: [email protected] or fax them to (407) 331-3030.

Sources:

“Closed School List.” https://floridasmassagetherapy.gov/forms/mt-closed-schools-11-14.pdf

“Florida Approved Massage Schools List.” https://floridasmassagetherapy.gov/forms/massage-list-school.pdf

Florida Board of Massage Therapy. “Are massage establishments required to have procedures for reporting human trafficking?” https://floridasmassagetherapy.gov/help-center/are-massage-establishments-required-to-have-procedures-for-reporting-human-trafficking/

Florida Board of Massage Therapy. “Education and Training Programs.” https://floridasmassagetherapy.gov/education-and-training-programs/

Florida Board of Massage Therapy. “Unlicensed Activity (ULA).” https://floridasmassagetherapy.gov/latest-news/unlicensed-activity-ula/

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25 Mistakes Massage Therapists Make After Being Informed of a Department of Health (DOH) Complaint

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

The investigation of a complaint which could lead to the revocation of a massage therapist’s license to practice and the assessment of tens of thousands of dollars in fines, usually starts with a simple letter from the Department of Health (DOH). This is a very serious legal matter and it should be treated as such by the massage therapist who receives it. Yet, in many cases, attorneys are consulted by massage therapists after the entire investigation is over, and they have attempted to represent themselves throughout the case. Often, the mistakes that have been made severely compromise an attorney’s ability to achieve a favorable result for the massage therapist.

Here are the 25 biggest mistakes we see in the massage therapy cases after a DOH investigation has been initiated:

1. Failing to keep a current, valid address on file with the DOH (as required by law), which may seriously delay the receipt of the Uniform Complaint (notice of investigation), letters, and other important correspondence related to the investigation.2. Contacting the DOH investigator and providing him/her an oral statement or oral interview. (Note: There is no legal requirement to do this.)

3. Making a written statement in response to the “invitation” extended by the DOH investigator to do so. (Note: There is no legal requirement to do this.)

4. Failing to carefully review the complaint to make sure it has been sent to the correct massage therapist. (Note: Check name and license number).

5. Failing to ascertain whether or not the investigation is on the “Fast Track” which may then result in an emergency suspension order (ESO) suspending the massage therapist’s license until all proceedings are concluded. (Note: This will usually be the case if there are allegations regarding drug abuse, alcohol abuse, sexual contact with a patient, mental health issues, or failure to comply with PRN instructions.)

6. Providing a copy of the massage therapist’s curriculum vitae (CV) or resume to the investigator because the investigator requested them to do so. (Note: There is no legal requirement to do this.)

7. Believing that if they “just explain it,” the investigation will be closed and the case dropped.

8. Failing to submit a timely objection to a DOH subpoena when there are valid grounds to do so.

9. Failing to forward a complete copy of the patient record when subpoenaed by the DOH investigator as part of the investigation, when no objection is going to be filed.

10. Delegating the task of providing a complete copy of the patient record to office staff, resulting in an incomplete or partial copy being provided.

11. Failing to keep an exact copy of any records, documents, letters or statements provided to the investigator.

12. Believing that the investigator has knowledge or experience in health care matters or procedures being investigated.

13. Believing that the investigator is merely attempting to ascertain the truth of the matter and this will result in the matter being dismissed.

14. Failing to check to see if their medical malpractice insurance carrier will pay the legal fees to defend them in this investigation.

15. Talking to DOH investigators, staff or attorneys, in the mistaken belief that they are capable of doing so without providing information that can and will be used against them.

16. Believing that because they haven’t heard anything for six months or more the matter has “gone away.” The matter does not ever just go away.

17. Failing to submit a written request to the investigator at the beginning of the investigation for a copy of the complete investigation report and file and then following up with additional requests until it is received.

18. Failing to wisely use the time while the investigation is proceeding to interview witnesses, obtain witness statements, conduct research, obtain experts, and perform other tasks that may assist defending the case.

19. Failing to exercise the right of submitting documents, statements, and expert opinions to rebut the findings made in the investigation report before the case is submitted to the Probable Cause Panel of your licensing board for a decision.

20. Taking legal advice from their colleagues regarding what they should do (or not do) in defending themselves in the investigation.

21. Retaining “consultants” or other non-lawyer personnel to represent them.

22. Believing that the case is indefensible so there is no reason to even try to have it dismissed by the Probable Cause Panel.

23. Attempting to defend themselves.

24. Believing that because they know someone with the Department of Health or a state legislator, that influence can be exerted to have the case dismissed.

25. Failing to immediately retain the services of a health care attorney who is experienced in such matters to represent them, to communicate with the DOH investigator for them, and to prepare and submit materials to the Probable Cause Panel.

Bonus Point: 26. Communicating with the Department of Health about the pending case.

Not every case will require submission of materials to the Probable Cause Panel after the investigation is received and reviewed. There will be a few where the allegations made are not “legally sufficient” and do not constitute an offense for which the massage therapist may be disciplined.

In other cases, an experienced health care attorney may be successful in obtaining a commitment from the DOH attorney to recommend a dismissal to the Probable Cause Panel. In other cases (usually the most serious ones), for tactical reasons, the experienced health care attorney may recommend that you waive your right to have the case submitted to the Probable Cause Panel and that you proceed directly to an administrative hearing. The key to a successful outcome in all of these cases is to obtain the assistance of a health care lawyer who is experienced in appearing before the Board of Medicine in such cases and does so on a regular basis.

Contact Health Law Attorneys Experienced with Department of Health Investigations of Massage Therapists.

The attorneys of The Health Law Firm provide legal representation to massage therapists in Department of Health (DOH) investigations and other types of investigations of health professionals and providers.To contact The Health Law Firm, please call (407) 331-6620 or (850) 439-1001 and visit our website at www.TheHealthLawFirm.com.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.