Deadline Looming: New Fingerprint Requirement for Florida Massage Therapists

Lance Leider headshotBy Lance O. Leider, J.D., The Health Law Firm

You can run, but you can’t hide.

During the 2014 Legislative Session CS/HB 1065 was passed. This law requires all new applicants and existing massage therapists and establishment owners to submit digital fingerprints. The law has been in effect since July 1, 2014 for new licenses. However, the deadline to submit fingerprints for existing licenses is January 31, 2015.

Click here to read CS/HB 1065.

Law Details.

According to the law, the following individuals must undergo a criminal background screening prior to January 31, 2015:

-    All massage therapists licensed in Florida prior to July 1, 2014.

-    Any person with an ownership interest in a massage establishment licensed in
Florida prior to July 1, 2014.

-    If the massage establishment is owned by a corporation that has more than
$250,000 of business assets in Florida, the owner, officer or individual directly
involved in the management of the establishment will be required to submit to
background screenings.

What’s a Digital Fingerprint?

If you haven’t already, massage therapists must locate a Florida Department of Law Enforcement (FDLE)-approved LiveScan Provider. LiveScan is a digital fingerprint used throughout the country by law enforcement, state agencies, and employers. The LiveScan provider will electronically send your fingerprint to the FDLE.

The cost for submitting a digital fingerprint varies by location, as does the information an applicant needs to bring with them.

It’s important to remember, if you include a photo with a LiveScan fingerprint, it will stay in the Florida Department of Health’s (DOH) database. However, if there is no photo included, then you will need to resend your finger print every two years.

Exemptions with New Requirement.

Licensed physicians, osteopathic physicians or chiropractors, who employ a licensed massage therapist to perform massages on the physician’s patients at the physician’s practice, are exempt from the background screening requirements.

Purpose of the New Law.

This law is new to massage therapists, not to the field of healthcare. Many other healthcare providers in Florida, including doctors, dentists, chiropractors, and nurses, have been required to submit digital fingerprints for years.

If a qualifying felony offense does show up on the background screening, the DOH will issue an emergency suspension order (ESO), suspending the license of that massage therapist or massage establishment. The DOH will also deny the application or renewal of any massage therapist or massage establishment with certain prior felony conviction. The purpose of the fingerprint-based background checks are to eliminate people with past felony convictions from obtaining or keeping their massage therapy licenses. Be mindful that any and all prior convictions will show up on this background check. This means, that even if you have a very old criminal history, it can potentially result in an investigation by the Board and possible disqualification from licensure. If you have questions regarding your massage therapy license, contact an experienced healthcare attorney.

Comments?

Did you know about this new law? Have you sent in your digital fingerprint yet? Please leave any thoughtful comments below.

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 massage 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: 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.

“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 © 1996-2014 The Health Law Firm. All rights reserved.

After Discipline on Your Massage Therapy License or Resignation of a Massage Therapy License After Notice of Investigation, What Happens Next?

7 Indest-2008-4By 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.

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

7 Indest-2008-4By 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

Florida Board of Massage Therapy Revokes More Licenses

5 Indest-2008-2By George F. Indest III, J.D., M.P.A., LL.M., Board Certified by The Florida Bar in Health Law

The Florida Department of Health (DOH) Board of Massage Therapy met in Sunrise, Florida, on January 24 and 25, 2013. During the meeting the Board held disciplinary hearings to determine, among other matters, the fate of a number of Florida massage therapists. Many of these massage therapists were accused of obtaining their licenses to practice through a transcript-buying scandal centered on the Florida College of Natural Health.

The Health Law Firm had one of its attorneys present at this Board of Massage Therapy meeting to get first-hand information on what was going on.

You may remember back in September 2012, the Florida Surgeon General announced that he had signed 161 emergency suspension orders (ESOs) for massage therapists in Florida. Click here to read our blog on that story.

Results from the Board of Massage Therapy Meeting.

During the Board of Massage Therapy meeting, the Board voted to revoke 19 massage therapists’ licenses. It voted to accept the voluntary surrender of an additional 55 massage therapists’ licenses, according to an article in the Sun Sentinel. A majority of these cases involved massage therapists who were charged with obtaining their Florida licenses by submitting fake credentials from the Florida College of Natural Health.

A number of massage therapists have named a single “rogue employee” of the Florida College of Natural Health, one of its officials, as the main culprit behind the phony credentials. She allegedly issued these fake transcripts and certificates in exchange for cash payments.

To read the entire article from the Sun Sentinel, click here.

More Massage Therapists Might Be Under Investigation.

Recently, we’ve received some other reports about massage therapists who allegedly received their massage therapy courses from ASM Beauty World Academy, Inc., in Broward County, Florida. These people we spoke with say they received their credentials from a man who was also involved in the scheme in South Florida. Massage therapists from the ASM Beauty World Academy are allegedly now receiving letters of investigation from the DOH.

Again, we’ve only has a few reports. If you attended the ASM Beauty World Academy, Inc., or any other massage therapy school and received a letter from the DOH about your license being investigated, please call an experienced health law attorney.

To see a list of Florida board approved massage therapy schools, click here. Please note this list is from 2012. The 2013 list has not been released. We will update this list as soon as the new list of Florida board approved schools is released on the DOH website.

Buy Professional Liability Insurance Now.

As a massage therapists, your license may come under investigation. We always recommend buying professional liability insurance sooner rather than later. Not only can professional liability insurance protect you in the event of a lawsuit, but it may also pay your legal defenses in the event of a complaint against your license to practice or for other legal problems. It’s a small price to pay to protect your livelihood. But be sure it covers the investigation of your license. Click here to learn more on professional liability insurance for massage therapists.

What You Don’t Know About DOH Investigations Can Hurt You.

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

These are the biggest mistakes we see in the massage therapy cases we are called upon to defend after a DOH investigation has been initiated:

1. Failing to keep a current, valid address on file with the DOH (as required by law), which may seriously delay the receipt of the Uniform Complaint (notice of investigation), letters, and other important correspondence related to the investigation.

2. Contacting the DOH investigator and providing him/her an oral statement or oral interview. (Note: There is no legal requirement to do this.)

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

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

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

Click here to read more on what not to do if you are contacted by a DOH investigator.

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.


Comments?

As a massage therapists, have you received a letter of investigation from the DOH? What do you think about the rulings during the January 213 board meeting? Please leave any thoughtful comments below.

Sources:

Clarkson, Brett. “As Regulators Yank Licenses, Masseuses Blame Businessman, Former School Official.” Sun Sentinel. (January 24, 2013). From: http://articles.sun-sentinel.com/2013-01-24/health/fl-massage-board-meetings-20130124_1_massage-licenses-massage-therapists-massage-establishments

About the Authors: 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.

How to Prepare for an Informal Hearing Before the Florida Board of Massage Therapy

2 Indest-2009-1在佛州按摩委员会面前你应该怎样为非正式听证做准备。

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

作者:林达思.乔治 – 佛洲注册的专门从事卫生法方面的资深律师

If you are scheduled to appear for an informal hearing before the Florida Board of Massage Therapy, there are a number of facts that you will want to know in order to be properly prepared. This article will cover many of them.

如果你与按摩委员会委员约定了非正式听证的时间,那么有很多细节你应该了解,这篇文章将会在下面详细介绍。

Limited Circumstances for Informal Administrative Hearing

限制条件下的非正式听证会

First, you should understand that you will only be at an informal hearing in which you appear before the Board of Massage Therapy itself for a very limited number of reasons. These will include the following:

首先,你应该明白只有如下几个原因你可以要求按摩委员会举行非正式听证会。

  1. If you completed an election of rights (EOR) form and agreed that you did not intend to dispute any material facts alleged against you from the administrative complaint (AC) in the case.

你填写了一张给予你的权利选择的表,并且表示你无意反驳行政部门对你的指控。

  1. If you entered into a settlement agreement (or “stipulation”) (similar to a plea bargain in a criminal case) in which you agreed to accept discipline against your license.

你同意进行和解(或者是调解)(有点类似于刑事犯罪的调解, 并且接受对你的执照做出的纪律处罚。

  1. You failed to submit any election of rights (EOR) form and failed to file a petition for a formal hearing in a timely manner, and, therefore, you have waived your right to a formal hearing.

你没有填写任何一张给予你的权利选择的表,并且没有在规定的时间内提出要求正式听证的要求,那就表示你已经放弃了你要求的正式听证的权利。

There are a few other circumstances in which there may be an informal hearing before the Board, such as motions to modify a final order, motion to lift a suspension of a license, appearance in accordance with an earlier order, petition for a declaratory statement, or other administrative matters. This article only discusses those directly relating to disciplinary action as indicated above.

此外,还有另外一些情况也可以要求非正式听证会,但是这种情况很少,例如:有意达成最后的意向,有意撤销终止执照,似乎与先前做出的意向吻合,类似请愿的申诉,等等其他行政方面的问题。这篇文章中只讨论与纪律处分有关的问题。
What an Informal Administrative Hearing Is Not

非正式听证会不是:

  1. An informal administrative hearing is not an opportunity for you to tell your side of the story. You have agreed that there are no disputed material facts in the case or you would not be at an informal hearing.

不是给你机会去陈述你的故事,因为你已经同意不去反驳对你的指控或者你也不会在非正式听证会出现。

  1. An informal administrative hearing is not an opportunity for you to prove that you are innocent of the charges. You have agreed that there are no disputed material facts in the case or you would not be at an informal hearing.

非正式听证会不是给你机会去证明你是清白的,因为你已经同意接受对你指控的事实是成立的,或者你也不会在非正式听证会上出现。

  1. An informal administrative hearing is not an opportunity for you to introduce documents or evidence to show that someone else committed the offenses charged and you did not. You have agreed that there are no disputed material facts in the case or you would not be at an informal hearing.

非正式听证会不是给你机会让你去呈献材料去证明你的清白,或者证明你是被陷害的。因为你已经同意对你的指控的事实是成立的,或者你也不会在非正式听证会上出现。

An informal administrative hearing is not an opportunity for you to argue that you should not be in the board’s impaired practitioners program (either the Professionals Resource Network (PRN) or the intervention Project for Nurses (IPN)) because you have completed a different program or that you do not have a problem. These are the only programs recognized and used and you have agreed that there are no disputed

  1. material facts in the case or you would not be at an informal hearing.

非正式听证会不是给你机会让你去争论你不应该被归置与专业能力受损的一类人员中(或者专业人员网络名单中PRN)或者IPN),因为你已经同意对你的指控事实是成立的,或者你也不会在非正式听证会上出现。

Formal Administrative Hearing vs. Informal Hearing

正式听证会 VS非正式听证会

If you desire to contest the facts alleged against you then you must state this in writing. If the material facts in a case are challenged by you, then the Board or the Department of Health (DOH) (note: all professional boards are under the Department of Health in Florida) must forward your case to the Division of Administrative Hearings (DOAH) where a neutral, objective administrative law judge (ALJ) will be appointed to hold a formal hearing in your case. This is the only way that exists for you to prove that the facts alleged against you are incorrect or that you are not guilty of the charges made against you. In fact, you do not even have to do anything in such a case. The Department of Health has the burden of proof and it has to prove the charges against you and the material facts alleged against you by clear and convincing evidence. Often, it is unable to do this at a formal administrative hearing.

如果你渴望去反驳对你的指控,你必须提出书面申请。如果你对控诉你的材料有质疑,卫生厅必须把你的案件交给行政部门。行政部门会指派一个公正的行政法官来审理你的案件(注:所有的佛州的专业人员都在行政部门的管理之下)。这是你证明你清白或者无罪的唯一方式。事实上,到此为止,你不必做任何事情。卫生厅已掌握了大量的无以反驳的证据来控诉你。所以说你如果想为自己辩解是不可能的。

However, because of the technicalities of evidentiary law and administrative law, we do not recommend that a nonlawyer attempt to represent himself or herself at such hearings. You can make technical mistakes (such as answering requests for admissions

incorrectly) that severely compromise any defense you may have. We recommend that you always retain the services of an experienced health lawyer in any such matter.

因此,鉴于专业法律和行政法律的专业性原因,我们真的不推荐你为自己辩诉。因为你很容易被误导(如错误的回答有关的提问),这样对你的答辩极为不利。我们建议你应该聘请擅长卫生法的专业律师。

What to Do If You Find That You Are at an Informal Hearing and That You Do Desire to Contest the Material Facts of the Case (And Your Guilt or Innocence)

如果你要求了一个非正式听证会,但是渴望反驳对你的指控(你是清白的或是无辜的),你应该怎样做呢?

If you have been scheduled for an informal administrative hearing and you decide that you do desire to challenge the material facts alleged against you in the administrative complaint (AC), file a written objection to proceeding at the informal hearing. State that you have discovered that there are material facts that you do desire to challenge and that you desire that the proceedings be converted to a formal hearing. File this with the Clerk of the administrative agency you are before (usually the department of health or the Agency for Health Care Administration (AHCA) and also send a copy to the opposing attorney and the executive director of the Board. Do this as early as possible and keep proof that you have actually and filed the written request.

如果你已经预约非正式听证会,但是现在你渴望反驳行政部门对你的指控,那么你就应该书面申请来反驳对正在进行中的非正式听证中对你的指控。在书面申请中,你应该表明你渴望对你的提出的指控进行反驳,并且希望把非正式听证会转变成正式听证会。你可以与你以前打过交道的办事人员联系(通常是卫生厅或者是有关卫生行政部门),并且要给对方律师和行政部门负责人一份复印件。这些事情一定要尽快进行,并且要保留你寄去书面申请的证据。

If you are already at the informal hearing when you discover this, object to the proceedings on the record and ask to have the informal hearing be converted to a formal hearing where you may contest the material facts. State this as many times as reasonably possible.

当你发现以上的所提到的事实,但是你已经在非正式听证会上了,那么你可以在记录中要求停止非正式听证会,并且提出要把非正式听证会转成正式听证会,要求反驳对你的指控。你需要多次的合理的提出你的要求。

Preparing for an Informal Hearing

非正式听证会的准备

Since you are not contesting the facts alleged against you, if you are going to an informal hearing be sure you do the following:

既然你不反驳对你的指控并且打算去参加非正式听证会,你应该做如下的准备:

  1. Be sure you know where the hearing is going to be held. Try to stay the night before in the same hotel as the hearing will be held. You will usually have to make these reservations early in order to get a room.

你要确定听证会在哪里召开。尽可能在听证会的前一晚待在举行听证会的同一宾馆里。你可能需要预定房间。

2. Attend a Board meeting that occurs before the one at which your case is scheduled. This will give you a feeling for the procedures that will be followed, will help to make you less nervous when you appear, and you can obtain continuing education units for doing so (be sure to sign in and sign out). Be sure to attend one of the days when the disciplinary hearings are held.

可以选择参加一个在你听证会前面的一个听证会,这样你就知道有些什么样的手续,而且轮到你的时候你就不会太紧张(注意不要忘记在进出时签名)。一定要确保参加一个与你同天举行的听证会。

3. Dress professionally for the appearance. This may be the most important event in your professional career. For men, this means a suit and tie or, at least, a dark coat, dark slacks and a necktie. For women, a professional business suit or the equivalent is in order. Do not dress as if you are going to the park, the beach or out on a date. Do not wear sexually provocative or revealing clothing.

穿着打扮要专业,因为这是你专业生涯中很重要的一个事件。男士应该穿西装打领带,至少要穿一件黑色的外套,合体的裤子和一个蝴蝶领结。女士也该同样穿着得体。避免沙滩约会类衣服,绝对避免过于性感的衣着。

4. Check the agenda that is published on line a day or two before the scheduled hearing to make sure that your case is still scheduled for the date and time on the hearing notice. Informal hearings may be moved around on the schedule. Make sure you are there at the earliest time on the hearing notice or agenda.

在听证会的一两天前,要查看议程表。确定听证会时间表,和是否如期执行。确保提早到达听证会场所。

5. Listen to questions asked of you by Board members and attempt to answer them directly and succinctly. You will be placed under oath for the proceeding and there will be a court reporter present as well as audio recording devices to take everything down.

在听证会上,要听清楚委员所问问题,并且简明扼要的回答。你将会要求在法庭上宣誓,法庭会有法庭记录员,并且还有录音设备。所有的过程将

6. Do not argue with the Board members or lose your temper. This is not the time or place to let this happen. If you have such tendencies, then you should have an attorney there with you who can intercept some of the questions and can make defensive arguments (to the extent that they may be permitted) for you.

确保不要与委员们争辩,避免情绪激动。由于此场合决不允许此状况发生。如果你感觉无法自控,则应聘请专业律师来帮助你和委员们争辩。(在一定程度上,这是允许的)。

7. You may introduce documents and evidence in mitigation. However, you have agreed that the material facts alleged are true, so you may not contest these. In effect, you have plead guilty and you are just arguing about how much punishment (discipline) and what kind of punishment you should receive.

你可以再提交文件或者证据,但是你已经承认对你的指控。因此,你的辩解是无效的。因事实上,你已经承认了你是有罪的。你只是与委员们争论有关对你的处罚和如何处罚的问题。

8. If you do intend to introduce documents and evidence in mitigation, be sure you know what the mitigating factors are (these are published in a separate board rule in the Florida Administrative Code for each professional board). These may include, for example, the fact that there was no patient harm, that there was no monetary loss, that restitution has been made, the length of time the professional has been practicing, the absence of any prior discipline, etc. You should submit these far ahead of time with a notice of filing, so that they are sent out to the board members with the other materials in your file. This is another reason to have experienced counsel represent you at the informal hearing.

如果你有意呈交一些文件和证据,来试图减轻对你的惩罚。你要确定明白什么是减轻惩罚的要素。(在佛州的行政法则中,每个专业委员会都有单独分开公布的条款)。例如:没有伤害到病人,没有金钱的损失,已经予以偿还,职业的时间,从无受到法律的处分,等等。以上材料都要准备齐全。这样你所有的材料将会一并寄交给委员们。在非正式听证会上这是一个很重要的原因为什要聘请一个专业的律师来帮助你。

9. Be prepared to take responsibility for your actions. If you are not prepared to take responsibility, then this means you must believe you are innocent and you should be at a formal hearing, not an informal one.

你必须要做好对自己行为负责的准备。如果你没有准备好,那将意味着你是无辜的,而你所需要的是一个正式听证会,而不是非正式的。

10. Be prepared to explain what went wrong, why it went wrong, and what remedial measures you have taken to prevent a recurrence of this type of event in the future. Show that you have learned from this experience and that you are not going to make the same mistake again.

你要准备好去解释哪里错,为什么错,和你已经采取了什么样的预防措施去避免以后发生类似的错误。这样表明了你从自己的过错中得到了经验,并不会再犯同样的错误。

11. It is our advice to always retain the services of an experienced attorney to represent you at such hearings. Often your professional liability insurance will cover this. If you have professional liability insurance, be sure that it contains a rider or addendum that provides coverage for professional license defense matters and administrative hearings. You need at least $25,000 to $50,000 in coverage for this type of defense. If necessary, you should contact your insurer or insurance agent and have the limits increased for a small additional premium.

我们建议你应该聘请专业的律师,和你一起维护个人权利。通常你的责任保险会覆盖这些费用,你要确认你购买的责任保险中包括了附加条款说明它覆盖了你专业执照的辩护以及行政听证的费用。这种辩护通常需要$25,000 ~ $50,000。如果必要,你应该联系保险公司或者保证人,在你最低标准中小幅度提高你的保险金。

 

Other Little Known Facts to Remember

 

其他须知

Professional licensing matters are considered to be “penal” or “quasi-criminal” in nature. Therefore, you have your Fifth Amendment rights in relation to being required to give evidence against yourself. You cannot be compelled to do this in such matters. However, since it is an administrative proceeding and not a criminal proceeding, there is no requirement that the licensee be advised of this by a DOH investigator or attorney.

专业执照的事件被看作是刑事的,或者是类似刑事的。因此,你拥有第五修正案的权利去提交证据来反驳对你的指控。在这件事情上你不能被强迫。然而,因为这是一个行政的过程,而不是一个刑事的过程。因此,不需要行政卫生厅的调查员或律师来通知你。

If you enter into a settlement agreement and attend the informal hearing to approve it, nothing you say or testify to at this hearing can later be used against you. This is because you are involved in an attempt to negotiate and settle (or compromise) the claims being made against you. It is a general rule of law that nothing the parties say in such settlement proceedings can later be used as evidence if the settlement agreement is not approved. The law tries to promote settlements among parties to any dispute in this way.

如果你已经达成协议,并且已参加非正式听证会。那么你在听证会上所说和所证明的事实,将不能再日后被用来指控你。因为你已经企图协商对你的指控,这是法律上一个大体的规则

这是法律上一个大体的规则,如果和解协议没有被批准,那么双方在和解中的陈述则不能在日后用来作为证据。法律将试图促进双方的和解,避免如此的争论。

It is true that on occasion the Board will examine a case on an informal hearing and will decide to dismiss it. This is rare, but it does happen. Sometimes, it will be a tactical decision on the part of you and your attorney to elect to go to an informal hearing with the hope that the Board may examine the case and decide to dismiss it. However, you cannot count on this happening.

委员会偶尔也会举行非正式听证会,并且决定停止控诉,这极为少见但会发生。有时,这是你和你律师之间的一个策略性的决定来选择一个非正式听证会,希望委员会能受理并且终止控诉。但是这种几率不大。

Don’t Wait Too Late; Consult with an Experienced Health Law Attorney Early

不要拖延,尽快联系有经验的律师

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.

绝对不要等到被控诉以后才联系律师。因为在这种情况下,胜诉的几率甚为渺小。如果你在有效的时间内充分为正式听证会做准备去反驳对你的指控,那么胜诉的机会将大大提高。

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.

我们健康法律师楼的律师们在正式和非正式听证会中都有着丰富的经验。我们提供代表佛州的按摩师在调查和听证方面的服务,请打电话或者浏览我们的网站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.

关于作者:林达思.乔治 是佛州注册的有关健康卫生方面的资深律师。林律师作为公司的董事长以及健康律师楼的合作伙伴,执业范围遍及全国。总公司地址及联系电话:Orlando, Florida, area. www.TheHealthLawFirm.com The Health Law Firm, 1101 Douglas Ave., Altamonte Springs, FL 32714, Phone: (407) 331-6620

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

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

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

Admitting to the Simplest Facts May Harm You.

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

Administrative Licensure Investigations are “Quasi-Criminal.”

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

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

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

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

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

 

Consult an Experienced Health Law Attorney.

The attorneys of The Health Law Firm are experienced in dealing with DOH investigators, AHCA surveyors, Drug Enforcement Administration (DEA) agents, FBI agents, police and sheriff’s office investigators, OIG special agents (S/As) and Medicaid Fraud Control Unit (MFCU) investigators. To contact The Health Law Firm, please call (407) 331-6620 or (850) 439-1001 and visit our website at http://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. http://www.TheHealthLawFirm.com The Health Law Firm, 1101 Douglas Ave., Altamonte Springs, FL 32714, Phone: (407) 331-6620.

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

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

Department of Health Licensees Have Statutory Duty to Update Addresses

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

A recent case involving the Florida Department of Business and Professional Regulation (DBPR) demonstrates how important it is for all professional licensees, including Department of Health (DOH) licensees, to immediately update their addresses with the licensing agency when there is change.

Appellant Sought to Reverse Revocation of Two Licenses.

In Griffis v. Department of Business and Professional Regulation, the appellant filed an appeal of the DBPR’s order revoking two of his licenses. The order also imposed a fine and ordered the appellant to pay restitution to a customer. The order was rendered on January 26, 2010. The appellant did not file his notice of appeal until October 15, 2010, over nine months later.

Court Dismissed Appeal As Untimely.

The First District Court of Appeal dismissed the appeal as untimely. The limitations period for the filing of a notice of appeal of an administrative action is jurisdictional. Because the notice of appeal was not filed within 30 days of rendition, the untimely filing precluded the court from exercising jurisdiction over the appeal. To view the opinion, click here.

Appellant Argued Late Filing Should Be Excused Because He Was Incarcerated.

The appellant argued that his late filing should be excused. According to the appellant, he did not learn of the final order until October 2010 because he was incarcerated at the time the order was issued. The Department did not send the order to the state correctional facility where the appellant was located, but rather to the address the appellant had on file with the Department.

Court Ruled Appellant’s Reason for Late Filing Was Unacceptable.

The First District Court of Appeal ruled that the appellant’s failure to timely file his notice of appeal could not be excused due to his incarceration. According to the court, as a licensee of the Department, the appellant had a statutory duty to keep the Department informed of his correct current mailing address. Having failed to do so, the appellant could not then complain that the Department failed to provide him with notice of entry of the order and of his time limit for appealing the order. Section 455.275(2), Florida Statutes, states:

Service by regular mail to a licensee’s last known address of record with the department constitutes adequate and sufficient notice to the licensee for any official communication to the licensee by the board or the department except where other service is required pursuant to s. 455.225.

Health Providers Must Update Addresses With All Relevant Departments to Avoid Untimely Filing.

All health providers who maintain a license with the DOH and all other Florida agencies must update their addresses with the agency when there is a change. If an incorrect address is on file, a health provider risks losing the right to timely respond to an investigation or file an appeal.

A correct address is also important so as to be able to receive communications from the agency such as important regulatory changes, as well as notices of required filings, proposed actions, proposed fines, etc. In addition, failing to maintain a correct address with the DOH or other agencies could lead to an additional charge of failure to carry out a statutory duty. This also applies to Medicare providers, who can risk termination of their Medicare number or billing privileges if they do not update each of their addresses (e.g., mailing address, physical address of practice, payment address, etc.) on file with Medicare as soon as there is a change. For more information on this, please see our previous blog post.

Contact Health Law Attorneys Experienced in Department of Health and Other Agency Administrative Actions.

If you have been notified of an investigation or an adverse action taken against your license by the DOH or other agency, it is imperative that you file all documents and appeals in a timely manner. An experienced health law attorney will be able to assist you in submitting all necessary materials by the deadline.

The Health Law Firm represents all health providers in legal matters involving the DOH, Agency for Health Care Administration (AHCA), Board of Medicine, Board of Nursing, Board of Pharmacy, Board of Dentistry, Medicare and Medicaid programs, and other administrative agencies.

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

Sources:

Griffis v. Department of Business and Professional Regulations. 69 So. 3d 958 (Fla. 1st DCA 2012)

Smallwood, Mary F. “Appeals.” Administrative Law Section Newsletter. (Apr. 2012).

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.

 

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