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Florida Suspends 81 Massage Therapists’ Licenses

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

According to a number of sources, state authorities have announced the suspension of more than 80 massage therapists’ licenses, who appear to have fraudulently obtained their licenses with the help of a Florida College of Natural Health employee. On September 19, 2012, 81 emergency suspension orders (ESOs) were signed, suspending the licenses of massage therapists who are part of ongoing investigations.

To see the entire press release from the Florida governor’s office, click here.

Investigation Found More Than 200 Therapists Obtained Their Licenses Fraudulently.

According to the Tampa Bay Times, earlier this year the Florida Department of Health (DOH), Clearwater Human Trafficking Task Force and the South Florida Human Trafficking Task Force began an investigation into several massage therapy businesses. The investigation turned up more than 200 massage therapists who appeared to have obtained their massage therapy licenses by fraud.

Florida Massage School Employee Helped Obtain the Fraudulent Licenses.

It is believed the 200 people did not enroll in massage therapy school, but received transcripts showing they completed training at the Florida College of Natural Health in Pompano Beach, Florida. The Tampa Bay Times article states that these people allegedly paid between $10,000 and $15,000 to an individual who worked at the Florida College of Natural Health in exchange for transcripts.

The transcripts were then used to get massage licenses from the DOH.

The governor has now ordered a seven-day review of massage schools to ensure they are complying with licensure requirements and regulations. Authorities believe more suspensions will likely be issued.

Massage Therapist Suspensions Thought to Be Tied to Human Trafficking.

According to the Tampa Bay Times, in a news conference authorities said the emergency suspension orders were, in part, an effort to target Florida’s human trafficking problem. Authorities said massage parlors are a typical place for finding victims of human trafficking.

Authorities also said they do not know if these 81 fake massage therapists are victims of human trafficking. It is clear, however, they are not operating legally.

Click here to read the entire article from the Tampa Bay Times.

Reference Articles for Licensed Massage Therapists.

On our website we provide helpful information for licensed massage therapists. To read about the consequences of having your massage therapy license revoked (or relinquishing it after a notice of an investigation), click here. To see the 25 biggest mistakes made by massage therapists after being notified of a DOH complaint, click here. You can also click here to read our advice for preparing for an informal hearing before the Florida Board of Massage Therapy.

Routine Legal Advice Given to Massage Therapists.

We routinely advise massage therapists and all other licensed health professionals with whom we have a legal consultation:

1. Do NOT speak with any Department of Health (DOH) investigator until you have talked to an experienced health law attorney.
2. Do not make any written statement or respond to any letters from the DOH until you have talked to an experienced health attorney.
3. Read everything you receive and be sure to file election of rights (EOR) statements by the deadline, but only after consulting with an experienced health lawyer.
4. You should not attempt to defend yourself without an attorney.
5. Attempting to talk your way out of the situation or explain your side of it will only hurt you.
6. Many types of massage therapist insurance will actually pay for an attorney to defend you in this type of situation.

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

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

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

Sources:

Department of Health. “Governor Rick Scott Joins Law Enforcement and Anti-Human Trafficking Groups to Suspend Licenses of 81 Massage Therapists.” DOH News Room. (September 19, 2012). From: http://newsroom.doh.state.fl.us/wp-content/uploads/newsroom/2011/08/91912-EOGMassage-Therapy-Licenses.pdf

Velde, Jessica. “Florida Suspends 81 Massage Therapists’ Licenses.” Tampa Bay Times. (September 19, 2012). From: http://www.tampabay.com/news/publicsafety/florida-suspends-81-massage-therapists-licenses/1252355#

Turner, Jim. “Florida Suspends 81 Massage Therapists in Human Trafficking Probe.” Sunshine State News. (September 19, 2012). From: http://www.sunshinestatenews.com/blog/florida-suspends-81-massage-therapists-human-trafficking-probe

About the Authors: Joanne Kenna, J.D., R.N., is an attorney with The Health Law Firm, which has a national practice. Its main office is in the Orlando, Florida, area. www.TheHealthLawFirm.com The Health Law Firm, 1101 Douglas Ave., Altamonte Springs, FL 32714, Phone: (407) 331-6620.

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

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

Consequences of Having Your Massage Therapy License Revoked (Or Relinquishing it after Notice of an Investigation)

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

Many massage therapists, when confronted with an investigation against their license, do not fight the charges, sometimes they decide it is cheaper and easier just to give up their license. Either choice is likely to be a mistake.

A charge can be filed causing an investigation to be opened against a massage therapist by many different sources and often without any supporting evidence. If challenged and defended by an attorney with knowledge and experience in such matters, these investigations may often be dismissed with no disciplinary action against the massage therapist’s license.

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

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

Your Greatest Assets are Your Professional and Personal Reputation.

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

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

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

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

Regardless, in my personal opinion and experience:

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

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

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

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

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

Best Advice: Purchase Insurance with Professional License Defense Coverage.

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

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

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

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

Additional Consequences of Discipline on Your Massage Therapy License.

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

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

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

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

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

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

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

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

Conclusion: Defend Your Reputation and Massage Therapy License.

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

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

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

Stay tuned to this blog for more.

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

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

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

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

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

Department of Health (DOH) Asking Suspended Florida Massage Therapists to Voluntarily Relinquish Their Licenses

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

On September 19, 2012, Florida state authorities announced the suspension of more than 80 massage therapists’ licenses. They are accused of fraudulently obtaining their licenses based on fake documentation obtained from a staff member at the Florida College of Natural Health, in Pompano Beach, Florida. On September 20, 2012, one massage therapist, whose license was suspended, spoke to the Sun Sentinel saying she had legitimately completed all of the requirements to obtain a license and is now being asked by the Department of Health (DOH) to voluntarily relinquish her license.

Click here to read the original blog post on the suspension of 81 massage therapists’ licenses.

Alleged “Rogue” Employee at the Florida College of Natural Health Immediately Terminated.

According to the Sun Sentinel, every massage therapist that had his or her license suspended allegedly received fraudulent documents from a “rogue” employee at the Florida College of Natural Health. The documents allegedly made it appear the person had completed the necessary course requirements to obtain a massage therapy license. Officials with the Florida College of Natural Health said the former staff member was immediately terminated when the scam came to light.

Alleged Fake Documents Spotted by a DOH Official.

A DOH official noticed the difference between one applicant’s fraudulent credentials and the actual course load at the Florida College of Natural Health, according to the Sun Sentinel. The credentials allegedly stated the applicant had completed a 500-hour massage course, but according to the school, the basic massage program the college offers is 768 hours.

One Suspended Massage Therapist Speaks Out.

One South Florida massage therapist spoke to the Sun Sentinel about her license suspension. She claims the investigation against her license has no merit, and said she studied at three different schools, including the Florida College of Natural Health. A check on the DOH website, showed that she has been licensed in Florida since 2008.

To read the Sun Sentinel article, click here.

DOH Requesting Suspended Massage Therapists to Voluntarily Relinquish Licenses.

According to the now suspended massage therapist, she received a notice of investigation letter from the DOH. Included in the letter was a Voluntary Relinquishment of License form.

There is a blog on our website about the consequences of having a massage therapy license revoked or relinquishing a license upon notice of an investigation. Click here to read this prior blog.

From experience, we know a charge can be filed causing an investigation to be opened against a massage therapist by many different sources and often without any supporting evidence. If challenged and defended by an attorney with knowledge and experience in such matters, these investigations may often be dismissed with no disciplinary action against the massage therapist’s license.

Other Consequences of a Voluntary Relinquishment.

A voluntary relinquishment in such circumstances is treated the same as a disciplinary revocation. The negative consequences of this are many and long lasting. They include:

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

2. Any other states or jurisdictions in which the client has a license will also initiate action against him or her in that jurisdiction. (Note: I have had two clients who had licenses in seven other states).

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

4. If the above occurs, the provider is also automatically “debarred” or prohibited from participating in any capacity in any federal contracting and is placed on the U.S. General Services Administration’s (GSA’s) debarment list.

5. The massage therapist’s national board or certifying organization will act to revoke his or her certification. After this, you won’t be able to be licensed anywhere in the U.S.

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

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

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

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

Sources:

Clarkson, Brett. “Over 80 Massage Therapists in Trafficking Probe Used Fake Credentials from Same College, Say Regulators.” Sun Sentinel. (September 20, 2012). From: http://articles.sun-sentinel.com/2012-09-20/news/fl-massage-trafficking-20120920_1_massage-therapists-massage-licenses-fake-credentials

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

Christopher E. Brown, J.D., is an attorney with The Health Law Firm, which has a national practice. Its main office is in the Orlando, Florida, area. www.TheHealthLawFirm.com The Health Law Firm, 1101 Douglas Ave., Altamonte Springs, FL 32714, Phone: (407) 331-6620.

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

The Collateral Effects of Voluntary Relinquishment with Investigation Pending or other Discipline on Your Massage Therapy License

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

Many massage therapists are unaware of the drastic long-term effects that discipline on their massage therapist license could have. This includes submitting a voluntary relinquishment of the massage therapist’s license while there is an investigation pending or while there are charges pending. Although this particular article is being prepared specifically for massage therapists, similar principles apply to physicians, nurses, pharmacists, psychologists, dentists, mental health counselors and other licensed health professionals.

A voluntary relinquishment of the license after notice of the opening of an investigation or while a charge is pending is treated the same as a disciplinary revocation of the license. It is reported out the same and is treated the same. In some cases it may even be worse, if the agreement to voluntarily relinquish also includes an agreement to never apply for another license again.

Even discipline on the massage therapy license such as a suspension, probation, restrictions, etc., can have far-lasting adverse repercussions. Most people do not understand what else can happen as a result of a discipline, revocation or even voluntary relinquishment (under these circumstances).

Reports to National Organizations on the Discipline.

First and foremost, the discipline (including voluntary relinquishment) will be a public record. It will also be reported out to national reporting agencies, including the National Practitioner Data Bank (NPDB) and the National Certification Board for Therapeutic Massage and Bodywork (NCBTMB).

As a result of the report to the NPDB, the Office of the Inspector General (OIG) of the U.S. Department of Health and Human Services (HHS) will probably start action to exclude the disciplined therapist from the Medicare Program and place him or her on the OIG’s List of Excluded Individual’s and Entities (LEIE). This will bar you from the Medicare Program or working for or contracting with anyone else who does (including insurer’s medical clinics and most health care providers). This by itself will also have many negative consequences. For example, if you are excluded from the Medicare Program you are automatically placed on the U.S. General Services Administration (GSA) “debarred” list. You are automatically excluded from working for or contracting with, in any capacity, any organization, individual or agency that has any government contracts or accepts any federal funding. This act can bar you from working for a public school, working as a real estate agent, or many other jobs.

The NCBTMB will also take action to revoke your national certification given by the NCBTMB. This will exclude you from being licensed in any other state.

Summary of Adverse Consequences of Revocation or Other Discipline.

To summarize, the most important adverse problems that may be caused as a result of discipline on your license, may include the following:

1. May cause discipline to be commenced against any other health professional license you have, such as a nurse, acupuncture physician, chiropractic assistant, nurse’s aide, home health assistant, etc.

2. Will prevent you from obtaining any health professional license in the future.

3. May cause discipline to be commenced against any massage therapy establishment license for a massage therapy establishment you own in whole or in part.

4. Any other states or jurisdictions in which you have a license will also initiate action against him or her in that jurisdiction.

5. The National Certification Board for Therapeutic Massage and Bodywork (NCBTMB) will also take action to revoke your national certification given by the NCBTMB. This will exclude you from being licensed in any other state and will cause any other state in which you are licensed to take action against you.

6. Mandatory report to the National Practitioner Data Base (NPDB)), which remains there for 50 years. (Note: Healthcare Integrity and Protection Data Bank or HIPDB recently folded into NPDB.)

7. The OIG of 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 OIG HHS.

8. If the above occurs, the provider is also automatically “debarred” or prohibited from participating in any capacity in any federal contracting and is placed on the U.S. General Services Administration’s (GSA’s) debarment list.

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

10. Regardless of any of the above, any facility licensed by AHCA (hospitals, skilled nursing facilities (SNFs), public health clinics, group homes for the developmentally disabled, etc.) that are required to perform background screenings on their employees will result in AHCA notifying the facility and the professional that he or she is disqualified from employment.

What Can be Done?

If you have submitted a voluntary relinquishment without understanding the consequences, and the Board of Massage Therapy (“Board”) has not acted to accept it, you may withdraw it. What we do is submit a letter to the Executive Director of the Board stating it was submitted by mistake without fully understanding the consequences, and the massage therapist desires to withdraw the voluntary relinquishment. We submit this immediately (keeping a copy, of course) and by certified mail, return receipt requested, so we have proof of sending and proof of receipt.

However, you must also ask for a formal hearing to dispute the facts in your case, as well. We usually do this at the same time and by the same method. If you fail to request a formal hearing, then you are waiving your rights to challenge your guilt or innocence.

If you have requested an informal hearing, you have made a big mistake. For an informal hearing, you admit that everything stated in the complaint against you is true. You have admitted that all of the charges against you are correct, so you are pleading guilty to the charges. You are then giving up the right to have a hearing to determine whether you are really guilty or innocent. All you are going to be arguing about is the punishment you will receive. You will not be allowed to testify on or introduce any evidence on your guilt or innocence.

If you have submitted a request for an informal hearing, not realizing this, then what we usually do is to submit an immediate request to have the hearing changed over to a formal administrative hearing where you are allowed to dispute the facts against you and prove your innocence. In such a case, it is necessary to submit a Petition for a Formal Administrative Hearing and to specify which facts are contested or disputed and why.

The case is then sent to a neutral administrative law judge (ALJ) to hold a hearing on the case. The state Department of Health (DOH) (the parent agency over the Board of Massage Therapy) is then required to prove the facts against you by clear and convincing evidence. In fact, you do not even have to introduce any evidence or testimony, the burden of proof is on the DOH to prove the case against you.

Emergency Suspension Orders (ESOs), Appeals and Election of Rights (EOR) Forms.

In Florida, if you have an Emergency Suspension Order (ESO), you can appeal it to a court of appeal. The problem with this is that it is very technical to do so and is very costly. Call an attorney who specializes in appeals or appellate law and ask. Additionally, the court of appeal only rules on the law and not the facts. The appeal court will be required to accept everything that is stated in the ESO as true. There is no fact hearing, there are only legal arguments. Your basic case will be delayed while this takes place, and you will probably lose on appeal. This may not be the correct choice for you.

However, if there is an ESO, you also have the right to an expedited fact hearing on it. This may be the best course of action if you have documents and facts to show you are not guilty of the charges.

Furthermore, there will also be an additional document served on you, an administrative complaint (AC). When you receive the AC, it will probably say just about the same thing as the ESO. You will be given your hearing rights when this occurs (called an “Election of Rights” form or “EOR”). As we indicated above, you will almost always want to select a formal administrative hearing in which you dispute (challenge or contest) the allegations (charges) made against you. This is the only way you will have the right to have a full and fair hearing on your innocence of the charges. Make sure it is submitted in plenty of time to be received within the 21 days given. Seek legal advice in completing it. Do not admit to anything; you don’t have to as the state DOH has the burden of proof.

The Need for an Experienced Health Law Attorney.

It is very difficult to take the actions necessary yourself if you do not have any legal training. Nonlawyers make many stupid mistakes in these proceedings, including submitting written statements that can be used against them when they do not have to do so, talking to the DOH investigator or Board personnel, talking to the DOH prosecuting attorney, making admissions which can be used against them, and waiving their rights when they do not have to do so.

Most attorneys are not familiar with these types of procedures if they do not practice health law. They do not realize that the same rights which apply in criminal cases also apply to professional licensure cases. You need to find and hire an attorney experienced in this type of case. That would be a health law attorney, and preferably one who is Board Certified by the Florida Bar in Health Law.

What You Should Do.

So the bottom line is that if you are innocent and want to dispute any charges against you, you should:

1. If you have professional insurance coverage, such as HPSO Insurance, see if your insurance will cover your legal defense expenses in this type of case. Many will. We know HPSO will.

2. Act right away to request all of your rights in any matter. Make sure that anything you submit is actually received (not mailed, received) before the deadline given.

3. Do not call, write or speak to the DOH investigator, Board personnel, DOH personnel or the DOH attorney.

4. Do not make a statement, written or oral, to the DOH investigator, Board personnel, DOH personnel or the DOH attorney.

5. Contest (dispute or fight) every action that might be stated against you, including one by the NCBTMB or OIG.

6. Do not admit to anything you don’t have to as the state DOH has the burden of proof.

7. Keep copies of all forms or letters submitted, along with proof of mailing and proof of receipt (send via certified mail, return receipt requested).

8. Retain the services of a health lawyer who has experience in Board of Massage Therapy/Department of Health (DOH) cases (ask him or her how many he or she has actually done). DO THIS FIRST, NOT LAST!

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

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

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.

The Health Law Firm2012-10-01T15:48:54-04:00June 1st, 2018|Categories: Department of Health, Health Care Industry, In the Know, In the News, Informal Hearings, Licensing issues, Massage Therapy, Massage Therapy License, The Health Law Firm Blog|Tags: administrative charges, administrative complaint, advanced therapy, back pain investigation, defense attorney, dentists, Department of Health (DOH), DOH investigation, election of rights (EOR), emergency suspension order (ESO), fake massage therapist, Florida Board of Massage Therapy, Florida College of Natural Health, formal hearing, human trafficking, Informal hearing, license investigation, licensed health professionals, licensed massage therapist, licensure defense coverage, massage therapist, Massage therapy, massage therapy defense, mental health counselors, neck pain investigation, neuromuscular therapy, nurses, pharmacists, physical therapy, physicians, psychologists, rehabilitation investigation, shoulder surgery investigation, sports medicine therapy, trigger point therapy|1 Comment

Terrible Things That Can Happen after Discipline on Your Professional License or Resignation of a License after Notice of Investigation

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

Do you have a medical, pharmacy or nursing license in several different 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 your professional license or voluntarily relinquishing such a license? Then you must be aware of the following.

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” 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 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 membership 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), advance 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.

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.

“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.

The Health Law Firm2013-07-31T09:00:28-04:00June 1st, 2018|Categories: Administrative law, Health Care Industry, Licensing issues, The Health Law Firm Blog|Tags: Administrative Hearing, and Lloyd's of London Insurance, CPH & Associates Insurance, defense attorney, defense lawyer, dentist, Department of Health and Human Services (HHS), Department of Health investigation, Department of Health investigation of a health care provider, disciplinary relinquishment, discipline on a health care professional’s license, exclusion from the Medicare Program, health care attorney, health care professional, health care professional license, Healthcare Providers Organization (HPSO) Insurance, investigation of a health care professional, investigation of a health care provider, List of Excluded Individuals and Entities, massage therapist, nurse, nurse excluded from the Medicare Program, Nurses Service Organization (NSO) Insurance, Office of the Inspector General (OIG), pharmacist, pharmacy, physician, professional licensing matter, resignation of a professional license, the health law firm, voluntary relinquishment, voluntary relinquishment of a health care provider’s license|0 Comments

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

The Health Law Firm2020-02-13T13:20:00-05:00May 15th, 2018|Categories: Department of Health Investigation, Massage Therapy, Massage Therapy License|Tags: Administrative Hearing, and Lloyd's of London Insurance, CPH & Associates Insurance, defense attorney, defense lawyer, Department of Health and Human Services (HHS), Department of Health investigation of a massage therapist, disciplinary relinquishment, discipline on a massage therapy license, exclusion from the Medicare Program, Healthcare Providers Organization (HPSO) Insurance, investigation of a massage therapist, List of Excluded Individuals and Entities, massage therapist, massage therapist attorney, massage therapist excluded from the Medicare Program, massage therapist lawyer, massage therapy assistant, massage therapy license, Office of the Inspector General (OIG), professional licensing matter, resignation of a massage therapy license, the health law firm, voluntary relinquishment, voluntary relinquishment of a massage therapy license|1 Comment

Massage Therapists (LMTs) and Massage Therapy Assistants: What You Don’t Know About Legal Matters Can Hurt You

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

The attorneys of The Health Law Firm represent Licensed Massage Therapists (LMTs) and Massage Therapy Assistants in a number of different legal matters. We appear before the Board of Massage Therapy. We represent massage therapists and massage therapy assistants in disciplinary matters, in credential matters, in licensing matters and in defending against malpractice claims and suits.

If you receive a letter from the Department of Health (DOH) notifying you that you are being investigated, this is a very serious matter. Get an attorney who is experienced in such matters. If you do receive a letter from the DOH, finding correct information regarding the next steps in the process is vital. Read on the learn more, and hopefully help you fight to keep your license.

Here is what you didn’t know:

1. You are not required to make any statement to the investigator, oral or written, and you should not do so.

2. You do not have to send the investigator a copy of your resume, and you should not do so.

3. You have a Fifth Amendment right to refuse to say or do anything that might incriminate yourself. This applies to administrative investigations.

4. If you have malpractice insurance (professional liability insurance) it may pay for your legal defense in an investigation. Use it!

5. You have the right to obtain a copy of the investigation after it is completed and to file a rebuttal to it.

Other things about this that you probably don’t know:

1. You should never agree to voluntarily relinquish your license if any investigation is pending. This will be treated the same as a disciplinary revocation and the consequences will be severe. (see below.)

2. You should never request an informal hearing. An informal hearing means you are admitting all of the allegations against you are true (pleading guilty), and you are not disputing them.

3. If disciplinary action is taken against you (including a “voluntary” relinquishment) this will be reported to your national certification board and it will most probably revoke your national certification.

4. If you have licenses in other states or in other health professions, this will be reported and they will commence investigations and disciplinary actions.

5. It will be reported to the National Practitioner Data Bank (NPDB) and the Office of the Inspector General (OIG). The OIG will then commence action to exclude you from the Medicare Program. If excluded, it is likely that you will not be able to work in health care or for any government contractor in any capacity.

Our attorneys have been very successful in representing massage therapists and massage therapy assistants. We may be able to have your case dismissed by the Probable Cause Panel of the Board. If not, we may be able to obtain a favorable result for you in a formal administrative hearing (like a trial) where the government has to prove the case against you and you are able to defend yourself.

You spent a great deal of time and money to get your professional education and your profession licenses. Don’t give it all up without getting advice from experienced attorneys.

Information Regarding Insurance Coverage.

Our recommendation is that every massage therapist and massage therapy assistant carry professional liability insurance that includes professional license defense coverage (sometimes called disciplinary defense, license defense, administrative hearing coverage or broad coverage). Most often this type of insurance coverage is included in most professional liability policies; however, if it is not, it can often be added as a rider to the insurance policy for a slight additional charge. You should be sure that your coverage for professional license defense is at least $25,000, and we recommend that you increase it to $50,000. You should also request and obtain “broad form coverage” that includes coverage of your legal fees for defense of all administrative or governmental proceedings, including Medicare audits, Medicaid audits, EEOC complaints and other types of governmental actions that could be initiated against you.

If you are required to defend yourself at a formal administrative hearing, this is similar to a medical malpractice trial in civil court. Attorney’s fees, court reporter costs, expert witness fees and other costs and fees can rapidly mount up to the point where most massage therapists and massage therapy assistants could not afford to defend themselves. If you are then required to appeal an adverse outcome, the appeal alone could cost $10,000.

Don’t wait to purchase this type of insurance until there is complaint filed against you, because then it is too late to purchase it. Complaints can be initiated against you based solely on anonymous calls to the Department of Health Hotline, newspaper reports, prior arrest reports, disgruntled patients, disgruntled insurance companies, competitors or other sources. Once and investigation is initiated, you should obtain legal representation right away. Without insurance, you probably will not be able to afford to hire a competent, experienced health lawyer to defend you. Always go to a board certified health lawyer experienced in representing massage therapists and massage therapy assistants.

For a chart depicting the Florida Department of Health investigation process, click here.

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.

Comments?

As a massage therapist or massage therapy assistant, how much of this blog did you already know? What are your biggest concerns as a health care professional? 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. http://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

The Health Law Firm2020-02-13T13:15:44-05:00May 15th, 2018|Categories: Department of Health Investigation, Florida Board of Massage Therapy, Massage Therapy|Tags: administrative charges, administrative complaint, advanced therapy, defense attorney, defense lawyer, Department of Health (DOH), DOH investigation, emergency suspension order (ESO), fake massage therapist, Florida Board of Massage Therapy, Florida College of Natural Health, formal hearing, Informal hearing, license investigation, licensed massage therapist, licensure defense coverage, malpractice insurance, massage therapist, Massage therapy, massage therapy assistant, massage therapy defense, neck pain investigation, neuromuscular therapy, physical therapy, professional liability insurance, rehabilitation investigation, shoulder surgery investigation, sports medicine therapy, the health law firm, trigger point therapy|1 Comment

New Florida Law Prohibits Massage Therapy Businesses from Operating Between Certain Hours: Should Remedy “Human Trafficking” in Florida

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

The operation of massage therapy establishments between certain late night and early morning hours will be prohibited under a new Florida law. Section 480.0475, Florida Statutes, becomes effective on October 1, 2013. The new Florida law restricts massage therapy businesses from being open for business between midnight and 5:00 A.M., with limited exceptions.

Click here to read Section 480.0475, Florida Statutes.

This law represents a significant curtailment of an establishment owner’s right to operate his/her business. The law states that it does not matter if an establishment is operating legitimately. The Florida Legislature and the Attorney General (AG) have cast a wide net to end what they refer to as a “human trafficking epidemic” in Florida massage establishments.

From our perspective, this will do nothing to help resolve any “human trafficking” problem that exists and is merely an invalid rationalization for this law. We have represented many massage therapists in Florida and have counseled many more. So far we have never encountered any that have been involved in any “human trafficking,” whether they are licensed massage therapists working in spas and salons or whether they are the owners of message therapy establishments.

Exceptions to the Law.

The law does not apply to massage establishments located on the premises of health care facilities, health care clinics, hotels, motels and public airports. It similarly does not apply to massages performed by a massage therapist under a medical prescription from a licensed physician, physician assistant, osteopathic physician, chiropractic physician, podiatric physician, advanced registered nurse practitioner (ARNP) or dentist.

Also, the law does not restrict massage therapists from operating between midnight and 5:00 A.M., during a special event if the county or municipality in which the establishment operates has approved such operation during the event.

Massage Therapy Businesses as Primary Residence.

Section 480.0475, Florida Statutes, also states that a massage establishment cannot be used as a primary residence unless it is zoned for residential use.

The Florida rules define “massage establishment” as “a site or premises, or portion thereof, wherein a licensed massage therapist practices massage for compensation.”

Penalties for Not Complying with the Law Include Fines and Jail Time.

A person who violates any provision of this statute is subject to criminal penalties.

The first violation is considered a misdemeanor of the second degree. The offender could face jail time of up to sixty (60) days and a $500 fine. The second violation is considered a misdemeanor of the first degree. The offender could spend up to a year in jail and have to pay a $1,000 fine. For someone who commits a third or subsequent violations, that person could be charged with a felony of the third degree. That offender faces imprisonment of up to five (5) years and a $5,000 fine.

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

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

We have represented a number of Chinese massage therapists who have had summary actions initiated against their massage therapy licenses by the Department of Health (DOH). Many of these have confided in us that they believe there may be discrimination involved in the way they were targeted. We are looking into such allegations for several clients.

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

Comments?

Did you know about this Florida Statue? Does your massage therapy business comply with this law already? Please leave any thoughtful comments below.

Have you been the subject of any discrimination or harassment from investigators based on your race or national origin? We’d like to hear from you if you have.

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

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

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

Florida Statute on Massage Therapy Establishments: Employees Must Present Documentation to Department of Health and Law Enforcement Agencies

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

Currently there is a fight in Florida, headed by the Attorney General (AG), to stop human trafficking. AG Pam Bondi has worked to make Florida a zero-tolerance state for human trafficking. During the 2012 legislative session, she advocated for legislation that was supposed to crack down on human trafficking.

Section 480.0535, Florida Statutes, is one result of her efforts. The statute contains details on the documentation required for employees working in a massage therapy establishment. These requirements provide the Department of Health (DOH) and law enforcement agencies the means to forcibly identify, investigate and arrest people who are supposedly involved in human trafficking.

Click here to read Section 480.0535, Florida Statutes.

This statute became effective on July 1, 2012.

Documents Required While Working in a Massage Therapy Establishment.

Under Section 480.0535, Florida Statutes, a person employed by a massage therapy establishment and any person performing massage therapy must immediately present, upon the request of a DOH investigator or a law enforcement officer, a form of valid government identification.

Valid identification includes:

– A valid driver’s license;
– A valid identification card;
– A valid United States passport;
– A naturalized certificate issued by the United States Department of Homeland Security;
– A valid alien registration receipt card (green card); or
– A valid employment authorization card issued by the United States Department of Homeland Security.

A person operating a massage therapy establishment must immediately present upon the request of a DOH investigator or law enforcement officer:

– Valid government identification while in the establishment; and
– A copy of the documentation specified above for each employee and any person performing massage therapy in the establishment.

Penalties for Not Complying.

A person who violates any provision of this statute is subject to criminal penalties for failure to comply with the documentation requirements.

The first violation is considered a misdemeanor of the second degree. The offender could face jail time of up to sixty (60) days and a $500 fine. The second violation is considered a misdemeanor of the first degree. The offender could spend up to a year in jail and have to pay a $1,000 fine. For someone who commits a third or subsequent violations, that person could be charged with a felony of the third degree. That offender faces imprisonment of up to five (5) years and a $5,000 fine.

This statute criminalized the act of not having identification on you during work as a massage therapist.

Previous Investigation of Massage Therapy Businesses Led to Emergency Suspension Orders.

You may remember back in September 2012, an investigation into several massage therapy businesses by the Florida DOH, Clearwater Human Trafficking Task Force and the South Florida Human Trafficking Task Force turned up more than 200 massage therapists who appeared to have obtained their massage therapy licenses by fraud. Subsequently, the Florida Surgeon General signed emergency suspension orders (ESOs) for more than 160 massage therapists in Florida.

Authorities said the ESOs were, in part, an effort to target Florida’s human trafficking problem. Authorities stated that massage parlors are a typical place for finding victims of human trafficking. Click here to read more from our previous blog.

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

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

We have represented a number of Chinese massage therapists who have had summary actions initiated against their massage therapy licenses by the Department of Health (DOH). Many of these have confided in us that they believe there may be discrimination involved in the way they were targeted. We are looking into such allegations for several clients.

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

Comments?

Did you know about this Florida Statue? Does your massage therapy business comply with the statute? Do you think it will help in preventing human trafficking? Please leave any thoughtful comments below.

Have you been the subject of any discrimination or harassment from investigators based on your race or national origin? We’d like to hear from you if you have.

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

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

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

The Health Law Firm Attorneys Often Represent Massage Therapists in Last Minute Depositions and Hearings

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

Our attorneys often receive calls from massage therapists regarding the possibility of representing them on short notice at a Board of Massage Therapy hearing, or at a deposition related to a health care matter.

We Take Last Minute Cases.

There are some law firms that refuse to represent a client at a hearing unless given plenty of advance notice and preparation time. We always prefer to have sufficient time to obtain documents, review files, interview witnesses, conduct research and prepare, in order to provide our clients the best possible representation. But we realize that in certain cases, the alternative is that the client either gets legal representation on little or no advance notice, or has to suffer the consequences of having no legal representation.

If we think the case is too complex for us to represent you effectively on such short notice or that any legal representation would be completely futile we may also refuse to represent a client. However, often this is not the situation.

Administrative Proceedings Can Be Confusing, Even For Inexperienced Attorneys.

In some cases individuals responding to a disciplinary complaint may be fooled into believing that they can effectively represent themselves. Laypersons (meaning, in this case, nonlawyers) who are not aware of such complex matters as the Administrative Procedure Act, the Rules of Civil Procedure, the Rules of Evidence, the Florida Administrative Code (F.A.C.) Rules which the Board of Massage Therapy and the Department of Health (DOH) have enacted may quickly be perplexed. Often the individual may only figure this out days or weeks before the final hearing.

The inexperienced individual, or even the inexperienced attorney, in these matters can fall into a number of procedural traps that damage an effective defense. This can be advising the individual to talk to the DOH investigator, filing an unnecessary answer to an Administrative Complaint, forgetting or not knowing that the client’s right to be free of self-incrimination applies in this type of case and many others.

Don’t Damage Your Defense.

Often you will find that merely having an experienced attorney to represent you at a hearing or Board meeting will assist you in avoiding mistakes that damage your case and assist you in preserving your rights for an appeal. In other cases it may even be possible to obtain a change in forum to obtain a better result. For example, many laypersons do not know that if you elect an informal hearing before the Board of Massage Therapy, you have waived your right to prove you are innocent by contesting the facts alleged against you.

What few know or think of in the heat of the moment is that you can ask at the informal hearing before the Board of Massage Therapy to contest the facts, to prove you are not guilty of the charges, and to have the hearing converted to a formal hearing. A formal hearing will be in front of a neutral Administrative Law Judge (ALJ), and you have a great many more procedural rights than you have at an informal hearing. However, we still recommend that you have an experienced health lawyer represent you at a formal hearing.

The Health Law Firm is Available for Deposition Coverage.

In a number of cases, we have been requested to provide local deposition coverage in an area near to one of our offices, when an out-of-town lead counsel is unable to make the trip. If the issues involve health care, we are pleased to be able to assist.

Often Professional Liability Insurance Will Pay Legal Fees for Deposition Coverage.

If you are a massage therapist who has a professional liability insurance policy, these often provide legal coverage for depositions. This is primarily because the outcome of the deposition may include having you named as a defendant in a professional liability or negligence lawsuit or having disciplinary charges filed against you.

One of the first things you should do if you receive a subpoena or a notice of a deposition is to contact your professional liability insurance carrier and see if it will pay for an attorney to represent you. For example, Healthcare Providers Service Organization (HPSO), CPH & Associates, Lloyds of London and many other malpractice insurance companies provide excellent deposition coverage.

The second thing you should do is to call an experienced attorney and schedule a consultation. Even if you cannot afford to retain the services of the attorney for the actual deposition, a consultation may assist you in properly preparing.

Consult With A Health Law Attorney Experienced in the Representation of Massage Therapists.

We routinely provide deposition coverage to massage therapists, massage therapy assistants and other health professionals being deposed in criminal cases, negligence cases, civil cases or disciplinary cases involving other health professionals.

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

Comments?

Have you ever had an informal or formal hearing before the Board of Massage Thearpy? What was the experience like? 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.

The Health Law Firm2020-02-13T13:18:26-05:00May 15th, 2018|Categories: Florida Board of Massage Therapy, Massage Therapy|Tags: administrative law judge, administrative procedure act, administrative proceeding, ALJ, Board of Massage Therapy, Board of Massage Therapy hearing, defense attorney, defense lawyer, department of health, deposition coverage, disciplinary charges, disciplinary complaint, FAC, final hearing, Florida Administrative Cods, formal hearing, health law firm, health professional, hearing representation, Informal hearing, last minute deposition coverage, legal representation, legal representation for massage therapist, local deposition coverage, massage therapist, massage therapy assistant, negligence lawsuit, noticed of a deposition, professional liability insurance, rights for an appeal, Rules of Civil Procedure, Rules of Evidence, short notice representation of massage therapist, subpoena, the health law firm|1 Comment