Certifying Emotional Support Animals and Protecting Your Professional License, Part 1 of 2

Attorney Amanda I. ForbesBy Amanda I. Forbes, J.D., and George F. Indest III, J.D., M.P.A., LL.M., Board Certified in Health Law

In today’s stress-filed world if you are a mental health counselor or other professional counselor, it is likely that you will encounter a client seeking to obtain an Emotional Support Animal (ESA)
designation letter from you. Providing such a letter may cause you to face complaints, licensing, and disciplinary actions driven by hostile landlords, homeowners associations, and business establishments that do not want any sort of animals on their premises. Often cases wind up in civil litigation. The client may also try to retaliate against you, should the client be the victim of legal problems because of attempting to keep an ESA and not understanding the legal ramifications.

However, you, as an experienced, licensed mental health professional must know what to do and not to do to protect your license and your career.

This is part 1 of 2 in a blog series regarding Emotional Support Animals. Click here for part two. We also intend to do a follow-up blog series on working animals and how they are legally distinguished from ESAs.

Here are some tips to keep in mind should you decide to provide an ESA recommendation letter:

1. You must develop and document a properly established therapist-client relationship with the client prior to writing a recommendation–do whatever you would normally do for any other client seeking your help who walks in the door.

2. Confirm the actual, true identity of the client to be sure you know with whom you are dealing. Request and obtain at least two different forms of photo ID, one including a driver’s license for the equivalent. Check and verify the name and address on the Internet or with directory assistance. (I have a personal rule of thumb: “If you can’t find a person on the Internet, then he is a fake and does not exist”).

3. Obtain the client’s complete mental health history and medical history, requesting and obtaining other treater’s records just as you would do for any other client/patient.

4. If the client has been referred to you by another provider, especially one in a different medical or health specialty, request a written referral documenting the need for the referral to you.

5. Adequately and thoroughly make and document any decision that an ESA will benefit the client and help in treating any mental health symptoms. Be thorough and document it.

6. Assign a code from the Diagnostic and Statistical Manual, ed. 5 (DSM-5 ), to the patient, or obtain one from the patient’s regular treating psychiatrist, psychologist, or mental health therapist.

7. The most important element involved is to show that there is an actual medical necessity for the client to have an ESA or that there will be a therapeutic benefit for the client to have the ESA. If you cannot justify and document this, then do not approve the request.

8. Evaluate the ESA, preferably by an in-person meeting or tele-health conference, and determine that it will benefit the client, be sure to document this evaluation and comment on the weight, height, aggressiveness, and character of the ESA. It is most helpful to have a form the ESA’s veterinarian will complete, sign, and return to you for confirmation of this information and, perhaps, an indication that the animal is suitable in character. Keep this in your record.

9. Thoroughly document the above in your chart on the client.

10. Have a thorough knowledge of your state’s laws and professional licensing board’s regulations concerning ESAs. You might review past disciplinary cases in which counselors have received discipline relating to ESAs in your state.

Warning About Organizations that Target Mental Health Counselors, Psychoanalysts, and Professional Counselors Who Approve Emotional Support Animals.

Those mental health counselors, social workers, professional counselors, and therapists who are involved in the certification or approval of emotional support animals and working animals should be advised that there are a number of organizations and individuals out there who seek out and target those who certify or approve such animals. These organizations and individuals see many cases of abuse and improper certifications being used. They see individuals who appear to have no real medical need for such an animal “purchasing” such certifications. They view them as a merely “privileged” individual who merely buys such certification for their pet just so that can take the pet everywhere and garner attention for themselves.

Sometimes these organizations and individuals even pretend to be a patient seeking certification of an emotional support animal or a working animal. They do often contact counselors using fake names and pretending to be fake patients to see how far the therapist will go without even having a real patient. Then they file a complaint with the therapist’s professional board in an attempt to have disciplinary action taken against their license.

Therefore, it is imperative that you follow the tips mentioned in this article.

Guidance from the American Counseling Association:

The American Counseling Association (ACA) published a position paper titled: Emotional Support Animals-Human Animal Interactions in Counseling Interest Network Position Statement.

In that position paper the ACA stated:

As Licensed Professional Counselors, the assessment of DSM-5 diagnoses for human clients is within the scope of practice; however, the added practices of animal behavior, behavior assessment or Human-Animal Interventions are (most often) not. Emotional Support Animal may, in some specific circumstances, provide benefits to humans to minimize identified symptoms often associated with a DSM 5 diagnoses; however, because of the potential risks and unanticipated outcomes, the HAIC strongly suggests that counselors abstain from writing letters for persons seeking counseling or assessments for the sole purpose of obtaining an ESA recommendation letter.

Click here to read the ACA letter in full.

However, if the counselor already has an existing treating relationship with a client and the counselor is considering writing an ESA recommendation letter, then the ASA recommends:

[T]he counselor must have a thorough knowledge of the local, state, and federal laws and policies surrounding ESAs and appropriate knowledge, skills, and attitudes with the subject of therapeutic human-animal interactions before writing such a letter.

Click here to learn more.

The ACA also cautions:

The ACA’s Code of Ethics C.2.e Consultations on Ethical Obligations includes “taking reasonable steps with other counselors, the ACA Ethics and Professional Standards Department, or related professionals when they have questions regarding their ethical obligations or professional practice.” This may include working with animal trainers, behaviorists, or veterinary behaviorists to ensure that the clinician remains within their scope of practice. Since there is no overarching licensing or accrediting body for this matter, nor are there federal or state mandates at this time, the onus is on the clinician to ensure ethical practice.

https://www.unh.edu/sites/default/files/departments/student_accessibility_services_/aca.final_version_esa14556_002.pdf. (Emphasis added).

Don’t forget to read part 2 in this blog series to learn more.

Contact Health Law Attorneys Experienced Investigations of Mental Health Counselors, Psychologists, Social Workers, and Family Therapists.

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

In cases in which the health care professional has professional liability insurance or general liability insurance which provides coverage for such matters, we will seek to obtain coverage by your insurance company and will attempt to have your legal fees and expenses covered by your insurance company. If allowed, we will agree to take an assignment of your insurance policy proceeds in order to be able to submit our bills directly to your insurance company.

We also defend health professionals and health facilities in general litigation matters and business litigation matters.

To contact The Health Law Firm, please call (407) 331-6620 or (850) 439-1001 or Toll-Free: (888) 331-6620, and visit our website at www.TheHealthLawFirm.com.

GEORGE F. INDEST III, J.D., M.P.A., LL.M.About the Authors: Amanda I. Forbes, practices health law with The Health Law Firm in its Altamonte Springs, Florida, office. George F. Indest III, J.D., M.P.A., LL.M., is Board Certified in Health Law by The Florida Bar and is licensed in Louisiana, Florida, and the District of Columbia. He is President and Managing Partner of The Health Law Firm. Its main office is in Orlando, Florida, area. www.TheHealthLawFirm.com. The Health Law Firm, 1101 Douglas Ave. Suite 1000, Altamonte Springs, FL 32714, Phone: (407) 331-6620 or Toll Free: (888) 331-6620.

KeyWords: Representation for healthcare professionals, representation for healthcare compliance, representation for healthcare facilities, healthcare facility defense lawyer, healthcare compliance defense attorney, healthcare license defense attorney, Complex Healthcare Litigation, complex healthcare litigation defense lawyer, Complex Business Litigation, Complex Commercial Litigation, Class Action Litigation, medical regulatory defense lawyer, representation for licensed mental health counselors (LMHCs), mental health counselor defense lawyer, licensed professional counselor (LPC) defense attorney lawyer, mental health counselor legal representation, licensed professional counselor (LPC) legal representation, social worker defense lawyer, representation for social workers, social worker defense attorney, social worker complaint cases, Florida Colorado Louisiana mental health counselor complaint cases, defense lawyer for psychologists, Florida health law defense attorney, medical license defense, Florida Department of Health (DOH) attorney, representation for Louisiana and Florida Department of Health (DOH) complaint investigations, Louisiana and Florida Department of Health (DOH) defense lawyer, Colorado Division of Regulatory Agencies (DORA) defense attorney, representation for Florida Colorado Division of Regulatory Agencies (DORA) complaint investigations, Colorado Division of Regulatory Agencies (DORA) defense lawyer, Lousiana LPC Board defense attorney lawyer, Health Law Firm reviews, reviews of The Health Law Firm attorneys, administrative complaint defense lawyer, administrative complaint defense attorney, administrative hearing defense lawyer, administrative hearing defense attorney, administrative hearing defense legal counsel, representation for health care professionals

“The Health Law Firm” is a registered fictitious business name of and a registered service mark of The Health Law Firm, P.A., a Florida professional service corporation, since 1999.
Copyright © 2021 The Health Law Firm. All rights reserved.

By |2021-02-17T11:20:17-05:00April 16th, 2021|Categories: Nursing Law Blog|Tags: , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , |0 Comments

Simple Rules for Keeping Your License and Avoiding Complaints for Counselors and Psychotherapists

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

I represent many mental health counselors, social workers, psychologists, and professional counselors, defending them on complaints being investigated against their professional licenses. Many complaints and investigations arise because the therapist has strayed over the line and crossed the therapist-client boundary. In reviewing these cases, I have drawn up a list of a few simple “bright line” rules that can help save you many hours of stress and mental anguish as well as thousands of dollars in attorney’s fees and costs defending yourself

These “rules” may seem to be common sense, but there they are, anyway:

1. DO NOT ever meet the client at an outside social activity or attend a social event with the client. This includes “just dinner” or “just-drinks.”

2. DO NOT text the client. Texting is not secure and leads to casual and unprofessional thinking and conversation with the client. Many health care institutions prohibit their physicians and employees from texting with clients because of the HIPAA Security and Privacy Rules. You can use that as an excuse if you need one.

3. DO take a screenshot and print out the text when you violate the above rule. Place it in the client’s health record because you will probably be seeing it again, attached to a complaint.

4. DO send an e-mail or, better yet, a professional letter to the client, instead of texting the client. Print out a copy and place it in the client’s health record, because you will probably see it again.

5. DO NOT EVER make any suggestive or sexual remarks to the client in any communications, oral or written or text, or e-mail. In fact, DON’T even think about it. This includes off-color jokes and comments.

6. DO immediately terminate the relationship with the client, transferring care to a different therapist, if the client suggests anything of a sexual nature involving you.

7. DO NOT talk about other clients with the client.

8. DO NOT talk about your own personal life with the client. Especially DO NOT let the client have your personal home address or personal e-mail address.

9. DO NOT ever have sex with a client or former client. DO NOT even think of it. If you start to think of it, see Rule 6, above. Consider clients and former clients “off-limits” no matter how much you are tempted. If you are religious, just consider this as an attempt by Satan to seduce you. If it works, you are going to be in Hell, even before you die.

10. DO know what professional boundaries are and DO NOT cross them. This includes allowing a personal relationship to grow between you and the client, and includes selling anything to the client (e.g., Girl Scout cookies, tickets to a charitable event, Amway products, candy bars for your kids’ school band, etc.), agreeing to meet the client at any outside event, accepting gifts from the client, hiring the client to work for you, accepting “voluntary” services from the client (including volunteering to work in your office). If you need a friend that bad, terminate the therapist-client relationship and see Rule 6, above.

11. DO know that if you have even a suspicion that your therapist-client relationship is getting out of bounds, then it already is out of bounds. See Rule 6, above.

12. DO call a professional therapist colleague who is more senior to you and consult her or him about the “situation” if you think there may be a “situation.”

These may sound like “no-brainers” to you, but you would be surprised at how many complaints against licensed counselors and psychologists there are as a result of violating one or more of these “rules.”

(Note: These “rules” are just guidelines meant to help you keep out of trouble; these are not meant to be enforced against anyone, nor do they create or represent any “standard of care.”)

For additional information on how our firm can assist you in matters like this, click here to read one of our prior blogs.

Contact Health Law Attorneys Experienced Investigations of Mental Health Counselors, Psychologists, Social Workers, and Family Therapists.

The attorneys of The Health Law Firm provide legal representation to mental health counselors, psychologists, psychiatrists, social workers, and family therapists in Department of Health (DOH) investigations, Department of Regulatory Agencies (DORA) investigations, board hearings, FBI investigations, and other types of investigations of health professionals and providers. To contact The Health Law Firm, please call (407) 331-6620 or toll-free at (888) 331-6620 and visit our website at www.TheHealthLawFirm.com.

We also defend health professionals and health facilities in general litigation matters and business litigation matters.

To contact The Health Law Firm, please call (407) 331-6620 or Toll-Free: (888) 331-6620 and visit our website at www.TheHealthLawFirm.com.

About the Author: George F. Indest III, J.D., M.P.A., LL.M., is Board Certified by The Florida Bar in Health Law. He is the President and Managing Partner of The Health Law Firm, which has a national practice. Its main office is in the Orlando, Florida, area. www.TheHealthLawFirm.com The Health Law Firm, 1101 Douglas Avenue, Suite 1000, Altamonte Springs, FL 32714, Phone: (407) 331-6620 or Toll-Free: (888) 331-6620

“The Health Law Firm” is a registered fictitious business name of and a registered service mark of The Health Law Firm, P.A., a Florida professional service corporation, since 1999.
Copyright © 2021 The Health Law Firm. All rights reserved.

 

 

By |2021-03-26T09:38:32-04:00March 26th, 2021|Categories: In the Know, In the News, Mental Health Law Blog|Tags: , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , |0 Comments

Certifying Emotional Support Animals and Protecting Your Healthcare License, Part 1 of 2

Attorney Amanda I. ForbesBy Amanda I. Forbes, J.D., and George F. Indest III, J.D., M.P.A., LL.M., Board Certified in Health Law

In today’s stress-filed world if you are a mental health counselor or other professional counselor, it is likely that you will encounter a client seeking to obtain an Emotional Support Animal (ESA)
designation letter from you. Providing such a letter may cause you to face complaints, licensing, and disciplinary actions driven by hostile landlords, homeowners associations, and business establishments that do not want any sort of animals on their premises. Often cases wind up in civil litigation. The client may also try to retaliate against you, should the client be the victim of legal problems because of attempting to keep an ESA and not understanding the legal ramifications.

However, you, as an experienced, licensed mental health professional must know what to do and not to do to protect your license and your career.

This is part 1 of 2 in a blog series regarding Emotional Support Animals. Click here for part two. We also intend to do a follow-up blog series on working animals and how they are legally distinguished from ESAs.

Here are some tips to keep in mind should you decide to provide an ESA recommendation letter:

1. You must develop and document a properly established therapist-client relationship with the client prior to writing a recommendation–do whatever you would normally do for any other client seeking your help who walks in the door.

2. Confirm the actual, true identity of the client to be sure you know with whom you are dealing. Request and obtain at least two different forms of photo ID, one including a driver’s license for the equivalent. Check and verify the name and address on the Internet or with directory assistance. (I have a personal rule of thumb: “If you can’t find a person on the Internet, then he is a fake and does not exist”).

3. Obtain the client’s complete mental health history and medical history, requesting and obtaining other treater’s records just as you would do for any other client/patient.

4. If the client has been referred to you by another provider, especially one in a different medical or health specialty, request a written referral documenting the need for the referral to you.

5. Adequately and thoroughly make and document any decision that an ESA will benefit the client and help in treating any mental health symptoms. Be thorough and document it.

6. Assign a code from the Diagnostic and Statistical Manual, ed. 5 (DSM-5 ), to the patient, or obtain one from the patient’s regular treating psychiatrist, psychologist, or mental health therapist.

7. The most important element involved is to show that there is an actual medical necessity for the client to have an ESA or that there will be a therapeutic benefit for the client to have the ESA. If you cannot justify and document this, then do not approve the request.

8. Evaluate the ESA, preferably by an in-person meeting or tele-health conference, and determine that it will benefit the client, be sure to document this evaluation and comment on the weight, height, aggressiveness, and character of the ESA. It is most helpful to have a form the ESA’s veterinarian will complete, sign, and return to you for confirmation of this information and, perhaps, an indication that the animal is suitable in character. Keep this in your record.

9. Thoroughly document the above in your chart on the client.

10. Have a thorough knowledge of your state’s laws and professional licensing board’s regulations concerning ESAs. You might review past disciplinary cases in which counselors have received discipline relating to ESAs in your state.

Warning About Organizations that Target Mental Health Counselors, Psychoanalysts, and Professional Counselors Who Approve Emotional Support Animals.

Those mental health counselors, social workers, professional counselors, and therapists who are involved in the certification or approval of emotional support animals and working animals should be advised that there are a number of organizations and individuals out there who seek out and target those who certify or approve such animals. These organizations and individuals see many cases of abuse and improper certifications being used. They see individuals who appear to have no real medical need for such an animal “purchasing” such certifications. They view them as a merely “privileged” individual who merely buys such certification for their pet just so that can take the pet everywhere and garner attention for themselves.

Sometimes these organizations and individuals even pretend to be a patient seeking certification of an emotional support animal or a working animal. They do often contact counselors using fake names and pretending to be fake patients to see how far the therapist will go without even having a real patient. Then they file a complaint with the therapist’s professional board in an attempt to have disciplinary action taken against their license.

Therefore, it is imperative that you follow the tips mentioned in this article.

Guidance from the American Counseling Association:

The American Counseling Association (ACA) published a position paper titled: Emotional Support Animals-Human Animal Interactions in Counseling Interest Network Position Statement.

In that position paper the ACA stated:

As Licensed Professional Counselors, the assessment of DSM-5 diagnoses for human clients is within the scope of practice; however, the added practices of animal behavior, behavior assessment or Human-Animal Interventions are (most often) not. Emotional Support Animal may, in some specific circumstances, provide benefits to humans to minimize identified symptoms often associated with a DSM 5 diagnoses; however, because of the potential risks and unanticipated outcomes, the HAIC strongly suggests that counselors abstain from writing letters for persons seeking counseling or assessments for the sole purpose of obtaining an ESA recommendation letter.

Click here to read the ACA letter in full.

However, if the counselor already has an existing treating relationship with a client and the counselor is considering writing an ESA recommendation letter, then the ASA recommends:

[T]he counselor must have a thorough knowledge of the local, state, and federal laws and policies surrounding ESAs and appropriate knowledge, skills, and attitudes with the subject of therapeutic human-animal interactions before writing such a letter.

Click here to learn more.

The ACA also cautions:

The ACA’s Code of Ethics C.2.e Consultations on Ethical Obligations includes “taking reasonable steps with other counselors, the ACA Ethics and Professional Standards Department, or related professionals when they have questions regarding their ethical obligations or professional practice.” This may include working with animal trainers, behaviorists, or veterinary behaviorists to ensure that the clinician remains within their scope of practice. Since there is no overarching licensing or accrediting body for this matter, nor are there federal or state mandates at this time, the onus is on the clinician to ensure ethical practice.

https://www.unh.edu/sites/default/files/departments/student_accessibility_services_/aca.final_version_esa14556_002.pdf. (Emphasis added).

Don’t forget to read part 2 in this blog series to learn more.

Contact Health Law Attorneys Experienced Investigations of Mental Health Counselors, Psychologists, Social Workers, and Family Therapists.

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

In cases in which the health care professional has professional liability insurance or general liability insurance which provides coverage for such matters, we will seek to obtain coverage by your insurance company and will attempt to have your legal fees and expenses covered by your insurance company. If allowed, we will agree to take an assignment of your insurance policy proceeds in order to be able to submit our bills directly to your insurance company.

We also defend health professionals and health facilities in general litigation matters and business litigation matters.

To contact The Health Law Firm, please call (407) 331-6620 or (850) 439-1001 or Toll-Free: (888) 331-6620, and visit our website at www.TheHealthLawFirm.com.

GEORGE F. INDEST III, J.D., M.P.A., LL.M.About the Authors: Amanda I. Forbes, practices health law with The Health Law Firm in its Altamonte Springs, Florida, office. George F. Indest III, J.D., M.P.A., LL.M., is Board Certified in Health Law by The Florida Bar and is licensed in Louisiana, Florida, and the District of Columbia. He is President and Managing Partner of The Health Law Firm. Its main office is in Orlando, Florida, area. www.TheHealthLawFirm.com. The Health Law Firm, 1101 Douglas Ave. Suite 1000, Altamonte Springs, FL 32714, Phone: (407) 331-6620 or Toll Free: (888) 331-6620.

KeyWords: Representation for healthcare professionals, representation for healthcare compliance, representation for healthcare facilities, healthcare facility defense lawyer, healthcare compliance defense attorney, healthcare license defense attorney, Complex Healthcare Litigation, complex healthcare litigation defense lawyer, Complex Business Litigation, Complex Commercial Litigation, Class Action Litigation, medical regulatory defense lawyer, representation for licensed mental health counselors (LMHCs), mental health counselor defense lawyer, licensed professional counselor (LPC) defense attorney lawyer, mental health counselor legal representation, licensed professional counselor (LPC) legal representation, social worker defense lawyer, representation for social workers, social worker defense attorney, social worker complaint cases, Florida Colorado Louisiana mental health counselor complaint cases, defense lawyer for psychologists, Florida health law defense attorney, medical license defense, Florida Department of Health (DOH) attorney, representation for Louisiana and Florida Department of Health (DOH) complaint investigations, Louisiana and Florida Department of Health (DOH) defense lawyer, Colorado Division of Regulatory Agencies (DORA) defense attorney, representation for Florida Colorado Division of Regulatory Agencies (DORA) complaint investigations, Colorado Division of Regulatory Agencies (DORA) defense lawyer, Lousiana LPC Board defense attorney lawyer, Health Law Firm reviews, reviews of The Health Law Firm attorneys, administrative complaint defense lawyer, administrative complaint defense attorney, administrative hearing defense lawyer, administrative hearing defense attorney, administrative hearing defense legal counsel, representation for health care professionals

“The Health Law Firm” is a registered fictitious business name of and a registered service mark of The Health Law Firm, P.A., a Florida professional service corporation, since 1999.
Copyright © 2020 The Health Law Firm. All rights reserved.

By |2021-02-17T11:18:52-05:00March 19th, 2021|Categories: Health Facilities Law Blog|Tags: , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , |0 Comments

Certifying Emotional Support Animals and Protecting Your License, Part 1 of 2

Attorney Amanda I. ForbesBy Amanda I. Forbes, J.D., and Carole C. Schriefer, J.D.

In today’s stress-filed world if you are a mental health counselor or other professional counselor, it is likely that you will encounter a client seeking to obtain an Emotional Support Animal (ESA)
designation letter from you. Providing such a letter may cause you to face complaints, licensing, and disciplinary actions driven by hostile landlords, homeowners associations, and business establishments that do not want any sort of animals on their premises. Often cases wind up in civil litigation. The client may also try to retaliate against you, should the client be the victim of legal problems because of attempting to keep an ESA and not understanding the legal ramifications.

However, you, as an experienced, licensed mental health professional must know what to do and not to do to protect your license and your career.

This is part 1 of 2 in a blog series regarding Emotional Support Animals. Click here for part two. We also intend to do a follow-up blog series on working animals and how they are legally distinguished from ESAs.

Here are some tips to keep in mind should you decide to provide an ESA recommendation letter:

1. You must develop and document a properly established therapist-client relationship with the client prior to writing a recommendation–do whatever you would normally do for any other client seeking your help who walks in the door.

2. Confirm the actual, true identity of the client to be sure you know with whom you are dealing. Request and obtain at least two different forms of photo ID, one including a driver’s license for the equivalent. Check and verify the name and address on the Internet or with directory assistance. (I have a personal rule of thumb: “If you can’t find a person on the Internet, then he is a fake and does not exist”).

3. Obtain the client’s complete mental health history and medical history, requesting and obtaining other treater’s records just as you would do for any other client/patient.

4. If the client has been referred to you by another provider, especially one in a different medical or health specialty, request a written referral documenting the need for the referral to you.

5. Adequately and thoroughly make and document any decision that an ESA will benefit the client and help in treating any mental health symptoms. Be thorough and document it.

6. Assign a code from the Diagnostic and Statistical Manual, ed. 5 (DSM-5 ), to the patient, or obtain one from the patient’s regular treating psychiatrist, psychologist, or mental health therapist.

7. The most important element involved is to show that there is an actual medical necessity for the client to have an ESA or that there will be a therapeutic benefit for the client to have the ESA. If you cannot justify and document this, then do not approve the request.

8. Evaluate the ESA, preferably by an in-person meeting or tele-health conference, and determine that it will benefit the client, be sure to document this evaluation and comment on the weight, height, aggressiveness, and character of the ESA. It is most helpful to have a form the ESA’s veterinarian will complete, sign, and return to you for confirmation of this information and, perhaps, an indication that the animal is suitable in character. Keep this in your record.

9. Thoroughly document the above in your chart on the client.

10. Have a thorough knowledge of your state’s laws and professional licensing board’s regulations concerning ESAs. You might review past disciplinary cases in which counselors have received discipline relating to ESAs in your state.

Warning About Organizations that Target Mental Health Counselors, Psychoanalysts, and Professional Counselors Who Approve Emotional Support Animals.

Those mental health counselors, social workers, professional counselors, and therapists who are involved in the certification or approval of emotional support animals and working animals should be advised that there are a number of organizations and individuals out there who seek out and target those who certify or approve such animals. These organizations and individuals see many cases of abuse and improper certifications being used. They see individuals who appear to have no real medical need for such an animal “purchasing” such certifications. They view them as a merely “privileged” individual who merely buys such certification for their pet just so that can take the pet everywhere and garner attention for themselves.

Sometimes these organizations and individuals even pretend to be a patient seeking certification of an emotional support animal or a working animal. They do often contact counselors using fake names and pretending to be fake patients to see how far the therapist will go without even having a real patient. Then they file a complaint with the therapist’s professional board in an attempt to have disciplinary action taken against their license.

Therefore, it is imperative that you follow the tips mentioned in this article.

Guidance from the American Counseling Association:

The American Counseling Association (ACA) published a position paper titled: Emotional Support Animals-Human Animal Interactions in Counseling Interest Network Position Statement.

In that position paper the ACA stated:

As Licensed Professional Counselors, the assessment of DSM-5 diagnoses for human clients is within the scope of practice; however, the added practices of animal behavior, behavior assessment or Human-Animal Interventions are (most often) not. Emotional Support Animal may, in some specific circumstances, provide benefits to humans to minimize identified symptoms often associated with a DSM 5 diagnoses; however, because of the potential risks and unanticipated outcomes, the HAIC strongly suggests that counselors abstain from writing letters for persons seeking counseling or assessments for the sole purpose of obtaining an ESA recommendation letter.

Click here to read the ACA letter in full.

However, if the counselor already has an existing treating relationship with a client and the counselor is considering writing an ESA recommendation letter, then the ASA recommends:

[T]he counselor must have a thorough knowledge of the local, state, and federal laws and policies surrounding ESAs and appropriate knowledge, skills, and attitudes with the subject of therapeutic human-animal interactions before writing such a letter.

Click here to learn more.

The ACA also cautions:

The ACA’s Code of Ethics C.2.e Consultations on Ethical Obligations includes “taking reasonable steps with other counselors, the ACA Ethics and Professional Standards Department, or related professionals when they have questions regarding their ethical obligations or professional practice.” This may include working with animal trainers, behaviorists, or veterinary behaviorists to ensure that the clinician remains within their scope of practice. Since there is no overarching licensing or accrediting body for this matter, nor are there federal or state mandates at this time, the onus is on the clinician to ensure ethical practice.

https://www.unh.edu/sites/default/files/departments/student_accessibility_services_/aca.final_version_esa14556_002.pdf. (Emphasis added).

Don’t forget to read part 2 in this blog series to learn more.

Contact Health Law Attorneys Experienced Investigations of Mental Health Counselors, Psychologists, Social Workers, and Family Therapists.

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

In cases in which the health care professional has professional liability insurance or general liability insurance which provides coverage for such matters, we will seek to obtain coverage by your insurance company and will attempt to have your legal fees and expenses covered by your insurance company. If allowed, we will agree to take an assignment of your insurance policy proceeds in order to be able to submit our bills directly to your insurance company.

We also defend health professionals and health facilities in general litigation matters and business litigation matters.

To contact The Health Law Firm, please call (407) 331-6620 or (850) 439-1001 or Toll-Free: (888) 331-6620, and visit our website at www.TheHealthLawFirm.com.

About the Authors: Amanda I. Forbes, practices health law with The Health Law Firm in its Altamonte Springs, Florida, office. Carole C. Schriefer is an attorney and former registered nurse.  Its main office is in Orlando, Florida, area. www.TheHealthLawFirm.com. The Health Law Firm, 1101 Douglas Ave. Suite 1000, Altamonte Springs, FL 32714, Phone: (407) 331-6620 or Toll Free: (888) 331-6620.

“The Health Law Firm” is a registered fictitious business name of and a registered service mark of The Health Law Firm, P.A., a Florida professional service corporation, since 1999.
Copyright © 2021 The Health Law Firm. All rights reserved.

By |2021-02-17T11:15:55-05:00February 17th, 2021|Categories: Colorado Health Law Blog|Tags: , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , |0 Comments

Laws Governing ESAs and Service Animals, Part 3 of 3

By Amanda I. Forbes, J.D.

This is part 3 of 3 in a blog series regarding the differences between Service Animals and Emotional Support Animals. Read part 1 and part 2.

The Fair Housing Act (FHA) is a federal law that “prohibits discrimination in housing because of: race or color, national origin, religion, sex, familial status, and disability.” (Emphasis added). It applies to both emotional support animals and service animals. (“emotional illness.”)
Click here to learn more.

In addition, the FHA states it is unlawful to:

[D]iscriminate in the sale or rental, or to otherwise make unavailable or deny, a dwelling to any buyer or renter because of a handicap.

42 U.S.C. Section3604(f)(1).

It also prohibits discrimination:

[A]gainst any person in the terms, conditions, or privileges of sale or rental of a dwelling, or in the provision of services or facilities in connection with such dwelling, because of a handicap . . .

42 U.S.C. Section 3604(f)(2).

For purposes of the FHA, discrimination includes a refusal to make:

[R]easonable accommodations in rules, policies, practices, or services, when such accommodation may be necessary to afford such person equal opportunity to use and enjoy a dwelling.

42 U.S.C. Section 3604(f)(3)(B).

The FHA is applicable to virtually all forms of housing. However, there are some exemptions:

1) Owner-occupied buildings with no more than four units, single-family housing sold or rented without the use of a broker, and housing operated by organizations and private clubs.
2) Single-family housing sold or rented without the use of a broker.
3) Housing operated by organizations and private clubs that limit occupancy to members.

The Department of Justice (DOJ) and the Department of Housing and Urban Development (HUD) have the power to enforce the Fair Housing Act. Generally, an individual with a disability may have a “reasonable accommodation” to a landlords “no pets policy”

According to the U.S. Department of Housing and Urban Development a “reasonable accommodation” is:

A reasonable accommodation is a change, exception, or adjustment to a rule, policy, practice, or service that may be necessary for a person with a disability to have an equal opportunity to use and enjoy a dwelling, including public and common use spaces . . . . The Act makes it unlawful to refuse to make reasonable accommodation to rules, policies, practices, or services when such accommodations may be necessary to afford persons with disabilities an equal opportunity to use and enjoy a dwelling.
To show that a requested accommodation may be necessary, there must be an identifiable relationship, or nexus, between the requested accommodation and the individual’s disability.

To learn more about reasonable accommodation, click here.

The American With Disabilities Act (ADA).

Under the ADA, in situations where it may not be readily apparent that an animal is a service animal the individual may be asked two questions by an establishment’s employees:

1) Is the service animal a requirement due to a disability?
2) What work has the animal been trained to perform?

Employees are not allowed to ask for documentation for the service animal or require the animal to demonstrate its function or inquire about the nature of the owner’s disability.

Under the ADA, 29 CFR Part 1630.2(k)(3), a “reasonable accommodation” is:

An individual with a record of a substantially limiting impairment may be entitled, absent undue hardship, to a reasonable accommodation if needed and related to the past disability. For example, an employee with an impairment that previously limited, but no longer substantially limits, a major life activity may need leave or a schedule change to permit him or her to attend follow-up or “monitoring” appointments with a health care provider.

29 CFR Part 1630.2(k)(3)

Emotional support animals are not considered service animals under the ADA.

The Air Carrier Access Act (ACAA).

The ACAA requires that airlines allow both service animals as well as emotional support animals to accompany their owners in the cabin of the aircraft.

Similar to the ADA, if an air carrier’s employee is not sure if an animal is a service animal they may “ask to see identification cards, written documentation, presence of harnesses or tags, or ask for verbal assurances” from the owner. Click here for more information on service animals.

In addition, you may be asked one of the following:

1) What tasks or functions does your animal perform for you?
2) What has your animals been trained to do for you?
3) Would you describe how the animal performs this task for you?

Regarding individuals who have emotional support animals and want their ESA to accompany them in the aircraft cabin the ACAA states the following:

e) If a passenger seeks to travel with an animal that is used as emotional support or psychiatric service animal, you are not required to accept the animal for transportation in the cabin unless the passenger provides you current documentation (i.e., no older than one year from the date of the passenger’s scheduled initial flight) on the letterhead of a licensed mental health professional (e.g., psychiatrist, psychologist, licensed clinical social worker, including a medical doctor specifically treating the passenger’s mental or emotional disability) stating the following:

(1) The passenger has a mental or emotional disability recognized in the Diagnostic and Statistical Manual of Mental Disorders – Fourth Edition (DSM IV);

(2) The passenger needs the emotional support or psychiatric service animal as an accommodation for air travel and/or for activity at the passenger’s destination;

(3) The individual providing the assessment is a licensed mental health professional, and the passenger is under his or her professional care; and

(4) The date and type of the mental health professional’s license and the state or other jurisdiction in which it was issued.

14 CFR Section 382.117(e) and (f). (Emphasis added).

Therefore, it would be wise to advise your clients that they should contact that airline well in advance of their flight in order to find out what documentation is required for their ESA to travel with them. Particularly, if the ESA is of the exotic variety.

On the topic of exotic ESAs or service animals, the ACAA states:

(f) You are never required to accommodate certain unusual service animals (e.g., snakes, other reptiles, ferrets, rodents, and spiders) as service animals in the cabin. With respect to all other animals, including unusual or exotic animals that are presented as service animals (e.g., miniature horses, pigs, monkeys), as a carrier you must determine whether any factors preclude their traveling in the cabin as service animals (e.g., whether the animal is too large or heavy to be accommodated in the cabin, whether the animal would pose a direct threat to the health or safety of others, whether it would cause a significant disruption of cabin service, whether it would be prohibited from entering a foreign country that is the flight’s destination). If no such factors preclude the animal from traveling in the cabin, you must permit it to do so. However, as a foreign carrier, you are not required to carry service animals other than dogs.

It is also important to note that:

(g) Whenever you decide not to accept an animal as a service animal, you must explain the reason for your decision to the passenger and document it in writing. A copy of the explanation must be provided to the passenger either at the airport or within 10 calendar days of the incident.

14 CFR Section 382.117(g). (Emphasis added).

Additionally, the airline cannot charge you for your reasonable accommodation of an ESA or a service animal.

According to 14 CFR Section 382.31(a):

Except as otherwise provided in this part you must not, as a carrier, impose charges for providing facilities, equipment, or services that this rule requires to be provided to passengers with a disability. You may charge for services that this part does not require.

14 CFR Section 382.31(a)

Florida Specific Law.

In Florida, a new law SB 1084 was enacted on June 23, 2020, and became effective on July 1, 2020. SC 1084 establishes what can be considered reliable information for an ESA it also creates a civil penalty for falsification of documentation used to support the need for an ESA.

In addition, it defines an “Emotional Support Animal” as:

An animal that does not require training to do work, perform tasks, provide assistance, or provide therapeutic emotional support by virtue of its presence which alleviates one or more identified symptoms or effects of a person’s disability.

SB 1084. Emphasis added.

Of particular note, SB 1084 states:

A person with a disability or a disability-related need is liable for any damage done to the premises or to another person on the premises by his or her emotional support animal.

Check with your state and local laws in order to ensure you are in compliance with your state’s laws regarding emotional support animals and service animals. Don’t forget to read part 1 and part 2 in this blog series.

Contact Health Law Attorneys Experienced Investigations of Mental Health Counselors, Psychologists, Social Workers, and Family Therapists.

The attorneys of The Health Law Firm provide legal representation to mental health counselors, psychologists, social workers, and family therapists in Department of Health (DOH) investigations, FBI investigations and other types of investigations of health professionals and providers. To contact The Health Law Firm, please call (407) 331-6620 or toll-free at (888) 331-6620 and visit our website at www.TheHealthLawFirm.com.

In cases in which the health care professional has professional liability insurance or general liability insurance which provides coverage for such matters, we will seek to obtain coverage by your insurance company and will attempt to have your legal fees and expenses covered by your insurance company. If allowed, we will agree to take an assignment of your insurance policy proceeds in order to be able to submit our bills directly to your insurance company.

We also defend health professionals and health facilities in general litigation matters and business litigation matters.

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: Amanda I. Forbes, practices health law with The Health Law Firm in its Altamonte Springs, Florida, office. Its main office is in Orlando, Florida, area. www.TheHealthLawFirm.com. The Health Law Firm, 1101 Douglas Ave. Suite 1000, Altamonte Springs, FL 32714, Phone: (407) 331-6620 or toll-free: (888) 331-6620.

“The Health Law Firm” is a registered fictitious business name of and a registered service mark of The Health Law Firm, P.A., a Florida professional service corporation, since 1999.
Copyright © 2020 The Health Law Firm. All rights reserved.

By |2021-03-04T10:33:19-05:00December 22nd, 2020|Categories: Mental Health Law Blog|Tags: , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , |0 Comments

Emotional Support Animals and Protecting Your License, Pitfalls and Tips, Part 2 of 3

Amanda I. Forbes, J.D.By Amanda I. Forbes, J.D.; and George F. Indest III, J.D., M.P.A., LL.M., Board Certified in Health Law

This is part 2 of 3 in a blog series regarding Emotional Support Animals (ESA) support letters being prepared by counselors and therapists. There are serious pitfalls that exist for the unwary mental health professional and, in part 1, we provided a number of tips on how to avoid these. Click here to read part 1. Don’t forget to read part 3!

The ACA has identified specific potential risks to animals, clients, the public, and counselors which everyone involved in this area of practice should be familiar with.

Potential Risks to Animals:

1. Neglect or other abuse; poor mental health on the part of the client may prevent adequate animal care or may promote neglect or abuse.

2. Undue stress may occur to the animal from constant work during accompaniment, including being placed in stressful environments.

3. The animal may suffer undue stress from being handled by a person who does not have specialized training.

4. The animal may suffer an illness, undue stress, or injury from public interactions.

Possible Risks to Clients:

1. Inadequate treatment of a mental health disorder.

2. Injury or property damage from an inadequately trained or socialized animal.

3. Zoonotic infection or disease.

4. Animal allergies in the client, the client’s family, and the client’s associates.

5. Potential fraud or legal concerns if an ESA is misrepresented as a service animal.

6. Financial and emotional burdens due to potential behavior problems associated with inadequately trained and socialized companion animals.

7. Misconception that a relationship with an ESA replaces or substitutes for professional mental health care or human relationships (especially the latter).

Potential Risk to the Public:

1. Injury or emotional damage from inadequately trained animals.

2. Untrained or improperly socialized animals may be more likely to be stressed out or aggressive in public.

3. Unsocialized animals may be disruptive and interfere with normal activities such as group functions, public travel, public dining.

4. Maladaptive interactions with other animals (especially toward service animals)

5. Zoonotic infection or disease from animals.

6. Animal allergies and phobias (yes, some regular people have phobias against dogs, cats, snakes, weasels, alligators, and monkeys).

7. They may contribute to public skepticism, which hurts those with valid helper animals (e.g., someone who has a full-size alligator that she claims is her emotional support animal and takes it everywhere she goes).

8. The more unsuitable the animal, the greater the risk (i.e., exotic pet, undomesticated or wild animal).

9. When more fraudulent animals have greater public access, the more public risk is incurred.

Risks to the Counselor Who Certifies or Approves an Emotional Support Animal:

1. Liability for adverse client outcomes due to inadequate or substandard treatment.
2. Potential provider role conflicts: Forensic v. Counseling.
3. Potential liability for injury/illness caused by the animal to the client or others.
4. Potential charges of fraud if an inadequate evaluation is done to demonstrate the need for the animal, or if performed in the absence of actual supporting facts, or if performed for a fake client who is just making up everything.
5. Disciplinary action taken against your professional license by your licensing board for any of the above.
6. Ethical considerations for inadequate education about ESAs and their role in comprehensive treatment. Potential to be called to testify if the ESA is challenged or if an incident occurs.

Click here for more information.

An additional potential risk that the ACA did not address was the possibility of disciplinary action against your license by your professional board. The reasons for such an action could possibly be from a failure to establish a proper client relationship prior to writing an ESA recommendation letter. It is important to keep these potential risks in mind when determining whether to write an ESA recommendation letter.

Don’t forget to read part 1 and part 3 of this blog series for more information.

Contact Health Law Attorneys Experienced Investigations of Mental Health Counselors, Psychologists, Social Workers, and Family Therapists.

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

In cases in which the health care professional has professional liability insurance or general liability insurance which provides coverage for such matters, we will seek to obtain coverage by your insurance company and will attempt to have your legal fees and expenses covered by your insurance company. If allowed, we will agree to take an assignment of your insurance policy proceeds in order to be able to submit our bills directly to your insurance company.

We also defend health professionals and health facilities in general litigation matters and business litigation matters.

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 Authors: Amanda I. Forbes, practices health law with The Health Law Firm in its Altamonte Springs, Florida, office. George F. Indest III, J.D., M.P.A., LL.M., is Board Certified in Health Law by The Florida Bar and is licensed in Louisiana, Florida, and the District of Columbia. He is President and Managing Partner of The Health Law Firm. Its main office is in Orlando, Florida, area. www.TheHealthLawFirm.com. The Health Law Firm, 1101 Douglas Ave. Suite 1000, Altamonte Springs, FL 32714, Phone: (407) 331-6620 or Toll Free: (888) 331-6620.

KeyWords: Representation for healthcare professionals, representation for healthcare compliance, representation for healthcare facilities, healthcare facility defense lawyer, healthcare compliance defense attorney, healthcare license defense attorney, Complex Healthcare Litigation, complex healthcare litigation defense lawyer, Complex Business Litigation, Complex Commercial Litigation, Class Action Litigation, medical regulatory defense lawyer, representation for licensed mental health counselors (LMHCs), mental health counselor defense lawyer, licensed professional counselor (LPC) defense attorney lawyer, mental health counselor legal representation, licensed professional counselor (LPC) legal representation, social worker defense lawyer, representation for social workers, social worker defense attorney, social worker complaint cases, Florida Colorado Louisiana mental health counselor complaint cases, defense lawyer for psychologists, Florida health law defense attorney, medical license defense, Florida Department of Health (DOH) attorney, representation for Louisiana and Florida Department of Health (DOH) complaint investigations, Louisiana and Florida Department of Health (DOH) defense lawyer, Colorado Division of Regulatory Agencies (DORA) defense attorney, representation for Florida Colorado Division of Regulatory Agencies (DORA) complaint investigations, Colorado Division of Regulatory Agencies (DORA) defense lawyer, Lousiana LPC Board defense attorney lawyer, Health Law Firm reviews, reviews of The Health Law Firm attorneys, administrative complaint defense lawyer, administrative complaint defense attorney, administrative hearing defense lawyer, administrative hearing defense attorney, administrative hearing defense legal counsel, representation for health care professionals

“The Health Law Firm” is a registered fictitious business name of and a registered service mark of The Health Law Firm, P.A., a Florida professional service corporation, since 1999.
Copyright © 2020 The Health Law Firm. All rights reserved.

By |2021-03-04T10:32:51-05:00October 5th, 2020|Categories: In the News, Mental Health Law Blog|Tags: , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , |0 Comments

Certifying Emotional Support Animals and Protecting Your License, Part 1 of 2

Attorney Amanda I. ForbesBy Amanda I. Forbes, J.D., and George F. Indest III, J.D., M.P.A., LL.M., Board Certified in Health Law

In today’s stress-filed world if you are a mental health counselor or other professional counselor, it is likely that you will encounter a client seeking to obtain an Emotional Support Animal (ESA)
designation letter from you. Providing such a letter may cause you to face complaints, licensing, and disciplinary actions driven by hostile landlords, homeowners associations, and business establishments that do not want any sort of animals on their premises. Often cases wind up in civil litigation. The client may also try to retaliate against you, should the client be the victim of legal problems because of attempting to keep an ESA and not understanding the legal ramifications.

However, you, as an experienced, licensed mental health professional must know what to do and not to do to protect your license and your career.

This is part 1 of 2 in a blog series regarding Emotional Support Animals. Click here for part two. We also intend to do a follow-up blog series on working animals and how they are legally distinguished from ESAs.

Here are some tips to keep in mind should you decide to provide an ESA recommendation letter:

1. You must develop and document a properly established therapist-client relationship with the client prior to writing a recommendation–do whatever you would normally do for any other client seeking your help who walks in the door.

2. Confirm the actual, true identity of the client to be sure you know with whom you are dealing. Request and obtain at least two different forms of photo ID, one including a driver’s license for the equivalent. Check and verify the name and address on the Internet or with directory assistance. (I have a personal rule of thumb: “If you can’t find a person on the Internet, then he is a fake and does not exist”).

3. Obtain the client’s complete mental health history and medical history, requesting and obtaining other treater’s records just as you would do for any other client/patient.

4. If the client has been referred to you by another provider, especially one in a different medical or health specialty, request a written referral documenting the need for the referral to you.

5. Adequately and thoroughly make and document any decision that an ESA will benefit the client and help in treating any mental health symptoms. Be thorough and document it.

6. Assign a code from the Diagnostic and Statistical Manual, ed. 5 (DSM-5 ), to the patient, or obtain one from the patient’s regular treating psychiatrist, psychologist, or mental health therapist.

7. The most important element involved is to show that there is an actual medical necessity for the client to have an ESA or that there will be a therapeutic benefit for the client to have the ESA. If you cannot justify and document this, then do not approve the request.

8. Evaluate the ESA, preferably by an in-person meeting or tele-health conference, and determine that it will benefit the client, be sure to document this evaluation and comment on the weight, height, aggressiveness, and character of the ESA. It is most helpful to have a form the ESA’s veterinarian will complete, sign, and return to you for confirmation of this information and, perhaps, an indication that the animal is suitable in character. Keep this in your record.

9. Thoroughly document the above in your chart on the client.

10. Have a thorough knowledge of your state’s laws and professional licensing board’s regulations concerning ESAs. You might review past disciplinary cases in which counselors have received discipline relating to ESAs in your state.

Warning About Organizations that Target Mental Health Counselors, Psychoanalysts, and Professional Counselors Who Approve Emotional Support Animals.

Those mental health counselors, social workers, professional counselors, and therapists who are involved in the certification or approval of emotional support animals and working animals should be advised that there are a number of organizations and individuals out there who seek out and target those who certify or approve such animals. These organizations and individuals see many cases of abuse and improper certifications being used. They see individuals who appear to have no real medical need for such an animal “purchasing” such certifications. They view them as a merely “privileged” individual who merely buys such certification for their pet just so that can take the pet everywhere and garner attention for themselves.

Sometimes these organizations and individuals even pretend to be a patient seeking certification of an emotional support animal or a working animal. They do often contact counselors using fake names and pretending to be fake patients to see how far the therapist will go without even having a real patient. Then they file a complaint with the therapist’s professional board in an attempt to have disciplinary action taken against their license.

Therefore, it is imperative that you follow the tips mentioned in this article.

Guidance from the American Counseling Association:

The American Counseling Association (ACA) published a position paper titled: Emotional Support Animals-Human Animal Interactions in Counseling Interest Network Position Statement.

In that position paper the ACA stated:

As Licensed Professional Counselors, the assessment of DSM-5 diagnoses for human clients is within the scope of practice; however, the added practices of animal behavior, behavior assessment or Human-Animal Interventions are (most often) not. Emotional Support Animal may, in some specific circumstances, provide benefits to humans to minimize identified symptoms often associated with a DSM 5 diagnoses; however, because of the potential risks and unanticipated outcomes, the HAIC strongly suggests that counselors abstain from writing letters for persons seeking counseling or assessments for the sole purpose of obtaining an ESA recommendation letter.

Click here to read the ACA letter in full.

However, if the counselor already has an existing treating relationship with a client and the counselor is considering writing an ESA recommendation letter, then the ASA recommends:

[T]he counselor must have a thorough knowledge of the local, state, and federal laws and policies surrounding ESAs and appropriate knowledge, skills, and attitudes with the subject of therapeutic human-animal interactions before writing such a letter.

Click here to learn more.

The ACA also cautions:

The ACA’s Code of Ethics C.2.e Consultations on Ethical Obligations includes “taking reasonable steps with other counselors, the ACA Ethics and Professional Standards Department, or related professionals when they have questions regarding their ethical obligations or professional practice.” This may include working with animal trainers, behaviorists, or veterinary behaviorists to ensure that the clinician remains within their scope of practice. Since there is no overarching licensing or accrediting body for this matter, nor are there federal or state mandates at this time, the onus is on the clinician to ensure ethical practice.

https://www.unh.edu/sites/default/files/departments/student_accessibility_services_/aca.final_version_esa14556_002.pdf. (Emphasis added).

Don’t forget to read part 2 in this blog series to learn more.

Contact Health Law Attorneys Experienced Investigations of Mental Health Counselors, Psychologists, Social Workers, and Family Therapists.

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

In cases in which the health care professional has professional liability insurance or general liability insurance which provides coverage for such matters, we will seek to obtain coverage by your insurance company and will attempt to have your legal fees and expenses covered by your insurance company. If allowed, we will agree to take an assignment of your insurance policy proceeds in order to be able to submit our bills directly to your insurance company.

We also defend health professionals and health facilities in general litigation matters and business litigation matters.

To contact The Health Law Firm, please call (407) 331-6620 or (850) 439-1001 or Toll-Free: (888) 331-6620, and visit our website at www.TheHealthLawFirm.com.

GEORGE F. INDEST III, J.D., M.P.A., LL.M.About the Authors: Amanda I. Forbes, practices health law with The Health Law Firm in its Altamonte Springs, Florida, office. George F. Indest III, J.D., M.P.A., LL.M., is Board Certified in Health Law by The Florida Bar and is licensed in Louisiana, Florida, and the District of Columbia. He is President and Managing Partner of The Health Law Firm. Its main office is in Orlando, Florida, area. www.TheHealthLawFirm.com. The Health Law Firm, 1101 Douglas Ave. Suite 1000, Altamonte Springs, FL 32714, Phone: (407) 331-6620 or Toll Free: (888) 331-6620.

KeyWords: Representation for healthcare professionals, representation for healthcare compliance, representation for healthcare facilities, healthcare facility defense lawyer, healthcare compliance defense attorney, healthcare license defense attorney, Complex Healthcare Litigation, complex healthcare litigation defense lawyer, Complex Business Litigation, Complex Commercial Litigation, Class Action Litigation, medical regulatory defense lawyer, representation for licensed mental health counselors (LMHCs), mental health counselor defense lawyer, licensed professional counselor (LPC) defense attorney lawyer, mental health counselor legal representation, licensed professional counselor (LPC) legal representation, social worker defense lawyer, representation for social workers, social worker defense attorney, social worker complaint cases, Florida Colorado Louisiana mental health counselor complaint cases, defense lawyer for psychologists, Florida health law defense attorney, medical license defense, Florida Department of Health (DOH) attorney, representation for Louisiana and Florida Department of Health (DOH) complaint investigations, Louisiana and Florida Department of Health (DOH) defense lawyer, Colorado Division of Regulatory Agencies (DORA) defense attorney, representation for Florida Colorado Division of Regulatory Agencies (DORA) complaint investigations, Colorado Division of Regulatory Agencies (DORA) defense lawyer, Lousiana LPC Board defense attorney lawyer, Health Law Firm reviews, reviews of The Health Law Firm attorneys, administrative complaint defense lawyer, administrative complaint defense attorney, administrative hearing defense lawyer, administrative hearing defense attorney, administrative hearing defense legal counsel, representation for health care professionals

“The Health Law Firm” is a registered fictitious business name of and a registered service mark of The Health Law Firm, P.A., a Florida professional service corporation, since 1999.
Copyright © 2020 The Health Law Firm. All rights reserved.

By |2021-02-17T11:16:34-05:00September 28th, 2020|Categories: In the News, Mental Health Law Blog|Tags: , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , |0 Comments

Got a Complaint Against Your Massage Therapist or Physical Therapist License? You Need an HPSO Insurance Attorney to Defend You

George Indest HeadshotBy George F. Indest III, J.D., M.P.A., LL.M., Board Certified by The Florida Bar in Health Law
Many massage therapists and physical therapists carry professional malpractice insurance through the Healthcare Providers Service Organization (HPSO) or one of the other similar professional liability insurance companies. What they may not realize is that their insurance will pay for their legal defense expenses if there is a complaint filed against their massage therapy license or physical therapy license, if they receive a subpoena to testify or produce documents, or if they are accused of violating HIPAA or a client’s medical confidentiality.

Under such policies, the insurance company will usually pay the legal fees and other costs related to your legal defense or legal representation during the proceeding. However, you will most often be required to locate and retain the appropriate attorney to represent you in the matter, even though the insurance company will pay the bills.

What to look for when retaining an attorney to defend you.

1. Seek and retain an attorney who accepts the insurance that you have, whether it is HPSO Insurance, CPH & Associates Insurance, Philadelphia Insurance, Trust Management Services, Philadelphia Insurance, Firemans Fund, or another national company. This will ensure that you have an attorney who will give you the lower rates the insurance company had negotiated and will have a good working relationship established with your insurance company. If an attorney with our firm cannot represent you, we will try to find an attorney who will.

2. The primary qualification for any attorney you hire to represent you should be his or her experience in working with health professionals in the same field. If the attorney is not familiar with your area of health practice or the type of hearings involved, it may be difficult for that attorney to get up to speed to represent you properly.

3. If you come across an attorney who states that she or he will help you make a statement to the investigator or assist you in the investigation, but does not appear at hearings, then this is the wrong attorney. You need an attorney that can represent you from start to finish.

4. You also want to retain the services of an attorney who has appeared before your professional board or state licensing authority, in investigations and hearings, especially formal or informal administrative hearings.

5. Often you will come across an attorney who only wants you to accept a consent order, stipulation, or settlement agreement. Remember that these are all merely “plea bargains” and by signing this you will be pleading guilty to whatever offenses are charged. In most cases, you will be innocent and you will need to request a formal administrative hearing in order to prove this, instead of signing the consent agreement (or order).

6. You don’t need an attorney who is located in your city, state, or location. Almost all the work on the case will be done by telephone and e-mail. You usually have only one meeting or hearing with the agency and, depending on what type of hearing or meeting it is, it could be located in many different locations. Our attorneys will travel to those locations for meetings and hearings with you.

7. Beware of attorneys who hold themselves out in Internet advertising as health attorneys or professional license defense attorneys but are really some other type of attorneys. We see this a lot from medical malpractice plaintiff attorneys, criminal defense attorneys and attorneys who sue insurance companies. Be sure you retain only an attorney who concentrates his or her practice in defending those in the specialty of massage therapy and physical therapy and in board of physical therapy and board of massage therapy complaints, investigations and hearings.

8. If you can’t find an attorney to meet your immediate needs through an Internet search, you may contact your insurance company or professional association and ask if they have a list of attorneys that can do the legal work you require. For example, you may reach Healthcare Providers Service Organization (HPSO) at (800) 982-9491; you can reach Nurses Service Organization (NSO) at (800) 247-1500; you can reach CPH & Associates at (800) 875-1911 or (312) 987-9823; you can access a list of professional license defense attorneys online at https://taana.org/referral/

To learn more about Board of Massage Therapy and DOH investigations, click here to read my prior 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 and physical therapists in Department of Health (DOH) investigations, licensing matters and other types of investigations of health professionals and providers. We have represented a number of massage therapists and physical therapists who have had summary actions initiated against their massage therapy licenses by the Department of Health (DOH).

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

About the Author: George F. Indest III, J.D., M.P.A., LL.M., is Board Certified by The Florida Bar in Health Law. He is the President and Managing Partner of The Health Law Firm, which has a national practice. Its main office is in Orlando, Florida, area. www.TheHealthLawFirm.com The Health Law Firm, 1101 Douglas Ave., Suite 1000, Altamonte Springs, FL 32714, Phone: (407) 331-6620.

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“The Health Law Firm” is a registered fictitious business name of and a registered service mark of The Health Law Firm, P.A., a Florida professional service corporation, since 1999.
Copyright © 2020 The Health Law Firm. All rights reserved.

By |2020-04-16T12:08:16-04:00April 16th, 2020|Categories: Massage Law Blog|Tags: , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , |0 Comments

Take this Quick and Easy Quiz to See If You Might Be a “Disruptive Physician”

Headshot of The Health Law Firm's attorney George F. Indest IIIBy George F. Indest III, J.D., M.P.A., LL.M., Board Certified by The Florida Bar in Health Law
I often have consultations with and represent physicians from across the country who are in trouble with their hospital medical staff or their licensing board because a complaint has been filed against them alleging they are a “disruptive physician.” This is often the result of an alienated member of the nursing staff or even an economic competitor trying to make trouble for or get rid of the physician.

A disruptive physician is one whose “obnoxious” behavior upsets patients or other staff members. The American Medical Association defines this in its Code of Medical Ethics as “personal conduct, whether verbal or physical, that negatively affects or that potentially may affect patient care.” This type of behavior is disfavored in hospitals and health systems because it is thought to negatively affect patient care by decreasing morale, teamwork, collaboration and communication among health professionals.

The Joint Commission Gets Involved.

Starting in 2008 the Joint Commission began urging hospitals to incorporate provisions to rein in disruptive behavior in the hospitals by physicians. The Joint Commission started requiring hospitals in 2009 to have a written code of conduct addressing the issue. This code of conduct must define acceptable, disruptive, and unacceptable behavior in the workplace, the latter two of which are usually lumped together.

Take This Quiz to See if You Are a “Disruptive Physician.”

Having represented physicians in hearings before medical staff peer review committees, resident physicians before academic conduct committees and appeal review committees, and physicians in hearings before the board of medicine, I have put together the following quiz from the types of misconduct such bodies use to denote a “disruptive physician.”

DISRUPTIVE PHYSICIAN QUIZ

Check “Yes” or “No” for each statement or question. Each “Yes” answer counts for one (1) point.

 

Add up all your “yes” answers above and see where you fall on the following chart:

SCORE
0 to 1 You are not a disruptive physician. You may be dead, however.
2 to 32 You may be a disruptive physician.

Although the quiz above is tongue-in-cheek, all of the questions or statements on it come from actual cases where a physician had to defend himself or herself against charges that they were a “disruptive physician.”

Legal Defenses To Disruptive Physician Charges.

Allegations against a physician for “disruptive behavior” are often vague and impossible to properly defend. It is imperative that if such charges are made against you, you obtain legal counsel who can get involved right away. Such vague, subjective allegations often are relatively easy to defend against, when the true facts are ascertained.

In the case of Fahlen v. Sutter Central Valley Hosp., 58 Cal. 4th 655 (2014), the physician’s hospital clinical privileges were terminated because of a claim of disruptive behavior. The California Supreme Court reversed the hospital’s decision and allowed the physician the right to proceed with a whistleblower case alleging substandard nursing care by the hospital’s nursing staff and the presence of risk to patient safety. In effect, the Court ruled that the doctor was merely a valid whistleblower complaining about quality of care issues. There are similar cases from other jurisdictions.

One can defend such a case by showing that the doctor’s actions are objectively reasonable under the circumstances. Other times you may have a defense you can show because an economic competitor is filing complaints or causing them to be filed against you. Sometimes complaints are generated by hospital staff as a result of a physician’s complaining about incompetent nursing staff or lack of proper equipment. In some cases, we have seen a single nurse generate enough animosity towards a physician so as to have charged with being disruptive.

Read one of my past blogs titled, “Disruptive Physicians: Nobody Likes a Nuisance” to learn more about this topic.

Contact Health Law Attorneys Experienced with Investigations of Health Professionals and Providers.

The attorneys of The Health Law Firm provide legal representation to physicians, nurses, nurse practitioners, CRNAs, dentists, pharmacists, psychologists and other health providers in accusations of disruptive behavior, Department of Health (DOH) investigations, Drug Enforcement Administration (DEA) investigations, FBI investigations, Medicare investigations, Medicaid investigations and other types of investigations of health professionals and providers.

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

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

KeyWords: Physician representation, hospital, and medical staff peer review hearings, representation for medical staff fair hearings, medical board representation, Professionals Resource Network (PRN) legal representation, “physician health program” and peer assistance representation, PRN attorney, representation for peer review hearings, disruptive physician representation, disruptive physician defense lawyer, peer review defense attorney, Board of Nursing representation, Board of Pharmacy representation, Board of Medicine representation, Board of Medicine defense lawyer, representation for board matters, healthcare board representation, representation for healthcare professionals, physician defense lawyer, medical license defense, healthcare license defense, reviews of The Health Law Firm, The Health Law Firm attorney reviews

“The Health Law Firm” is a registered fictitious business name of and a registered service mark of The Health Law Firm, P.A., a Florida professional service corporation, since 1999.
Copyright © 2020 The Health Law Firm. All rights reserved.

 

 

Finding a Healthcare Providers Service Organization (HPSO) Insurance Attorney to Defend you in a Complaint Against Your Pharmacist or Pharmacy License

Carole C. SchrieferBy Carole C. Schriefer, J.D.
Many pharmacists or their pharmacies carry professional malpractice insurance through Healthcare Providers Service Organization (HPSO) or one of the other similar professional liability insurance companies. What they may not realize is that this insurance will pay for their legal defense expenses if there is a complaint filed against their pharmacist license or the pharmacy’s license. It will also pay for legal defense expenses if they receive a subpoena for records, if they are required to attend a deposition, or if they are accused of violating HIPAA or a client’s medical confidentiality.

Under this type of policy, the insurance company will pay the legal fees and other costs related to your defense or legal representation. However, you will be required to locate and retain the appropriate attorney to represent you in the matter.

What to Look For When Retaining an Attorney to Defend You.

1. The primary qualification for any attorney you hire to represent you should be his or her experience in working with health professionals in the same field. If the attorney is not familiar with your area of health practice, with the type of legal proceeding you have, or with your professional licensing board, it may be difficult for that attorney to represent you properly.

2. If consult with an attorney who states that she or he will help you make a statement to the investigator or assist you in the investigation, but will not agree to appear and represent you in hearings, then this is the wrong attorney. You need an attorney that can represent you from start to finish.

3. Seek and retain an attorney who accepts the insurance that you have, whether it is HPSO Insurance, CPH & Associates Insurance, Philadelphia Insurance, Pharmacist Mutual Insurance Company (PMIC), Trust Management Services, Philadelphia Insurance, Firemans Fund, or another national company. This will ensure that you have an attorney who will give you the lower rates the insurance company has negotiated and will have a good working relationship established with your insurance company. If an attorney with our firm cannot represent you, we will try to find you an attorney who will.

4. You also want to retain the services of an attorney who has appeared before your professional board or professional licensing authority in investigations and hearings, especially in formal administrative hearings.

5. Often you will come across an attorney who only wants you to accept a consent order, stipulation, or settlement agreement. Remember that these are all merely plea bargains and you will be pleading guilty to whatever offenses are charged. This is teh easy way out and often the easy way is not the right way. IF you plead guilty then, from that point on, you are guilty. In most cases, however, you will actually be innocent of the charges and will need a formal administrative hearing in order to prove this.

6. You don’t necessarily need an attorney who resides in your city, state, or location. Almost all the work on the case will be done by telephone and e-mail. You usually have only one meeting or hearing and, depending on what type of hearing it is, it could be located in many different locations. Our attorneys will travel to those locations for meetings and hearings.

7. Beware of attorneys who hold themselves out in Internet advertising as health attorneys or professional license defense attorneys but are really some other type of attorneys. We see this a lot from medical malpractice attorneys, criminal defense attorneys and attorneys who sue insurance companies. Be sure you get an attorney who concentrates his or her practice in defending those in the specialty of pharmacy and in board of pharmacy complaints, investigations, and hearings.

8. If you can’t find an attorney to meet your immediate needs through our firm or an Internet search, you may contact your insurance company or professional association and ask if they have a list of attorneys that can do the legal work you require.

For example, you may reach Healthcare Providers Service Organization (HPSO) at (800) 982-9491; you can reach Nurses Service Organization (NSO) at (800) 247-1500; you can reach CPH & Associates at (800) 875-1911 or (312) 987-9823; you can reach Pharmacists Mutual Insurance Company (PMIC) at (800) 247-5930.

Contact Health Law Attorneys Experienced Investigations of Pharmacists and Pharmacies.

The attorneys of The Health Law Firm provide legal representation to pharmacists, pharmacies, prescribing physicians, dispensing physicians and nurse practitioners, and other health providers in pharmacy board complaints and investigations, Department of Health (DOH) investigations, Colorado DORA investigations, Drug Enforcement Administration (DEA) investigations, Medicare and Medicaid audits, Medicaid Fraud Control Unit (MFCU) 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.

In cases in which the health care professional has professional liability insurance or general liability insurance which provides coverage for such matters, we will seek to obtain coverage by your insurance company and will attempt to have your legal fees and expenses covered by your insurance company. If allowed, we will agree to take an assignment of your insurance policy proceeds in order to be able to submit our bills directly to your insurance company.

We also defend health professionals and health facilities in general litigation matters and business litigation matters.

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: Carole C. Schriefer is an attorney and former registered nurse. She practices with The Health Law Firm, which has a national practice. Its regional office is in the Northern Colorado, area. www.TheHealthLawFirm.com The Health Law Firm, 155 East Boardwalk Drive, Fort Collins, Colorado 80525. Phone: (970) 416-7456. Its main office is in the Orlando, Florida area.

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“The Health Law Firm” is a registered fictitious business name of and a registered service mark of The Health Law Firm, P.A., a Florida professional service corporation, since 1999.
Copyright © 2020 The Health Law Firm. All rights reserved.

By |2020-02-04T16:56:51-05:00February 4th, 2020|Categories: Colorado Health Law Blog|Tags: , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , |0 Comments
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