Administrative Law Judge Recommends Dismissal of All Charges Against Massage Therapist

FACTS: As reported in the June 2013 edition of DOAH Case Notes, Guiping Diamond graduated from the Florida College of Natural Health (“FCNH”) and became a Florida-licensed massage therapist in 2009. However, FCNH’s former registrar falsely told her that FCNH would accept all of the credits from her previous school and that those transfer credits fulfilled FCNH’s requirements for issuance of a diploma satisfying state licensure requirements. There was no evidence that Ms. Diamond was aware of the falsified documentation, which the FCNH registrar submitted directly to the Board of Massage Therapy (“the Board”).

The Department of Health (“DOH”) issued an administrative complaint seeking revocation of Ms. Diamond’s license based on a variety of charges, including that Ms. Diamond obtained a license through fraudulent misrepresentation, or in the alternative, formal administrative hearing, the ALJ recommended that the Board enter a final order finding her not guilty. While section 456.072(1)(h), Florida Statutes, subjects licensees to discipline for obtaining a license through an error of DOH, the ALJ concluded the licensee must have knowingly used DOH’s error to his or
her advantage, which the ALJ found was not the case here.

OUTCOME: The Board issued a Final Order rejecting all 13 of DOH’s Exceptions to the Recommended Order and dismissed the administrative complaint. DOH appealed the Board’s Final Order to the First District Court of Appeal. That appeal and four others involving similar events at FCNH are currently pending.

Source:

Dep’t of Health v. Diamond, DOAH, Case No. 12-3825PL (Recommended Order April 9, 2013); DOH Case No. 2012-11850 (Final Order Aug. 21, 2013).

About the Author: The forgoing case summary was prepared by and appeared in the DOAH case notes of the Administrative Law Section newsletter, Vol. 35, No. 2 (Dec. 2013), a publication of the Administrative Law Section of The Florida Bar.

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.

Massage Therapists Need Good Professional Liability Insurance with Broad Coverage

4 Indest-2009-3By George F. Indest III, J.D., M.P.A., LL.M., Board Certified by The Florida Bar in Health Law

Whether you’re an independent contractor, an employee of a chiropractor, physician or spa, or you travel to clients’ homes, insurance is essential for all massage therapists. 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. In Florida, it is not mandatory for a massage therapist to have professional liability insurance. However, since it is so cheap, we always recommend buying coverage. It’s a small price to pay to protect your livelihood. But be sure it covers investigation of your license.

It is now common to be able to find professional liability insurance that provides excellent coverage and excellent benefits, but costs less than a dollar a day. One policy I recently reviewed for a massage therapist included payment of all attorney’s fees and costs for defense of HIPAA privacy complaints, for defense of any complaints or investigations of the therapist’s license and for legal representation at any deposition.

The Best Reason for Coverage: To Provide Legal Defense for a Complaint Against the Massage Therapist’s License.

The primary reason a professional liability policy should be purchased is that this type of insurance usually includes coverage for legal defense of licensing and disciplinary action commenced against a massage therapist. It’s important to note that many massage therapists’ liability insurance includes this coverage automatically, but some policies may not. Some companies may offer this type of coverage separately to be purchased for a small additional premium.

License defense coverage pays the legal fees associated with defending a massage therapist when an investigation is initiated that may result in action against the massage therapist’s license or in administrative disciplinary action. Coverage is usually available from the time the massage therapist receives written notice that an investigation by a state agency has been initiated. It will also cover formal administrative hearings before an administrative law judge.

You should buy this coverage now, when you don’t need it. Otherwise, when you do need it, it will be too late after the problem arises.

Important Considerations When Purchasing Liability Protection.

When deciding on which professional liability insurance plan to purchase, the massage therapist should inquire as to the extent of coverage for licensing and disciplinary defense coverage. Some professional liability insurers have a “broad form” of coverage which may provide legal defense for the massage therapist in almost any type of administrative action. Other companies limit coverage to only actions that may result in disciplinary action against the massage therapist’s license. Still others provide no coverage at all except for lawsuits in professional negligence cases. The massage therapist should always attempt to get the broadest coverage available and be sure it covers disciplinary defense and licensure defense expenses.

The massage therapist should also question as to whether or not he or she will be allowed to select his or her own attorney. Many insurance companies have contracts with certain law firms to provide legal services for a reduced fee. The insurance company may require you to use one of its own contracted attorneys or in-house attorneys which it employs directly. Given the limited number of attorneys with experience in handling massage therapy law issues, it is advised to obtain coverage through a company which allows the massage therapist to choose his or her own attorney, especially for license defense.

The most important reason to purchase professional liability insurance is for the licensure defense coverage. A massage therapist does not want to risk losing his/her license because he/she was unsuccessful at defending in an investigation or did not have the resources to do so.

Ask About Your Coverage – Get Answers in Writing.

Since there are many different insurance companies out there selling professional liability insurance, it is important to be sure of exactly what is covered and what is not covered. Some companies provide “broad form” coverage, providing coverage for everything I discussed above, automatically. See Healthcare Provider’s Service Organization (HPSO) Insurance for example.

Other companies will provide this coverage as a “rider” for a small additional premium. Some insurers do not sell it at all, so you will have to buy it elsewhere. If you are in doubt as to your coverage, ask and get the answer in writing.

Insurance agents typically deal with a number of insurance companies. If you are using an insurance agent, be sure to specify exactly what you want. A good agent will be able to find it for you.

The Pricey Truth About Defending Your License.

Legal representation is costly. To defend a simple case involving a complaint made against you, whether valid or not, can range from $3,000 to $25,000 or more. A case involving a formal hearing (similar to a trial) can cost much more than you imagine. If you are not independently wealthy and cannot afford a legal defense, you may be forced to accept discipline from the Board of Massage Therapy, even if you are completely innocent.

The rules and procedures in administrative licensing cases are not the same as cases in civil and criminal courts. An insurance policy that provides licensure defense will help the massage therapist to have the financial resources to seek out a health law attorney experienced in disciplinary cases and to obtain a fair hearing.

Florida Suspends the Licenses of 161 Massage Therapists.

You may remember in September of 2012, the Florida Secretary of Health signed 161 emergency suspension orders (ESOs) for massage therapists in Florida. The suspension orders were aimed at massage therapists who allegedly obtained their licenses to practice through a transcript-buying scandal at the Florida College of Natural Health. Many of these massage therapists are still fighting to keep their licenses. This is just one instance where having professional liability insurance can help save a health care professional’s livelihood. You can read more on the suspension of the 161 massage therapists’ licenses by clicking here.

Contact Health Law Attorneys Experienced in Representing 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, do you have professional liability insurance? Why or why not? Please leave any thoughtful comments below.

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

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

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.

Suspended Florida Massage Therapists are Being Asked to Voluntarily Relinquish Their Licenses

暂停佛罗里达州的按摩治疗师,被要求自愿放弃他们的许可证

2012年9月19日,佛罗里达州当局宣布暂停超过80按摩治疗师的执照。他们被指控以欺诈手段获得佛罗里达大学的天然保健品,鲳参海滩,佛罗里达州的一名工作人员伪造文件的基础上获得他们的许可。 2012年9月20日,一名按摩治疗师,执照被吊销,采访了太阳哨兵报说她合法地完成了所有的要求取得许可证,目前正在要求卫生署(DOH)自愿放弃她许可证。

点击这里阅读原始博客文章,暂停81按摩治疗师的执照

 

所谓“流氓”雇员在佛罗里达大学的天然保健马上松手从学院。

据“太阳哨兵报,每一个按摩治疗师,他或她的驾照被吊销涉嫌伪造文件从一个”流氓“雇员在佛罗里达大学的天然保健。该文件据称它出现的人已经完成了必要的课程要求获得按摩治疗执照。与天然健康的佛罗里达大学的官员说,前工作人员被立即终止时的骗局揭发。

 

卫生署官方首次发现据称伪造文件。

卫生署官员发现一个申请人的欺诈凭据和实际的课业负担,在佛罗里达大学的天然保健品之间的区别,根据太阳哨兵。据称凭证表示,申请人已完成了500小时的按摩课程,但根据学校,学院提供的基本的按摩程序的时间为768小时。

 

一个暂停按摩治疗师谈有她的驾照被吊销。

南佛罗里达州的按摩治疗师谈到对她的停牌太阳哨兵报。她声称,调查对她的许可,没有任何可取之处,并表示她曾在三个不同的学校,包括佛罗里达自然健康学院。卫生署网站上的一个检查,结果显示,她在佛罗里达州自2008年以来已被授权。

读“太阳哨兵报文章,请点击这里

 

卫生署叫暂停的按摩治疗师,自愿放弃许可证。

根据现在暂停的按摩治疗师,她收到了协查函,通知卫生署。在信中包括许可证的形式是一个自愿放弃。

在我们的网站上有一个博客,会谈的按摩疗法被吊销牌照或放弃的调查通知后,许可证的后果。

点击这里阅读此之前的博客

根据以往的经验,我们知道,一次充电可提交调查,以打开对许多不同的来源和经常的按摩治疗师没有确凿的证据。挑战和辩护律师的知识和经验,在这类问题上,这些调查往往可能被解雇,无纪律处分的按摩治疗师的执照。

 

更多的自愿放弃的后果。

在这样的情况下被视为一个自愿放弃一样的纪律撤销。这是许多和持久的负面影响。这些措施包括:

1。全国从业者资料库(NPDB)(注:医疗保健完整性和最近保护数据银行或HIPDB的的折叠成NPDB),仍然有50年的强制性报告。
2。任何其他国家或司法管辖区中,客户端有一个执照也将采取行动,对他或她在该司法管辖区。 (注:我有两个客户在其他七个国家的许可证)。
3。卫生和人类服务部(HHS)监察长办公室(OIG)将采取行动,排除提供者的医疗保险计划。如果发生这种情况(这些罪行要求强制排除),供应商将被置于名单除外个人和实体(LEIE),HHS OIG维护。
4。如果上述情况发生,供应商也自动被取消资格或禁止以任何名义参与任何联邦合同中,并放置在美国总务管理局(GSA)的除名名单。
5。按摩治疗师的国家委员会或认证机构将采取行动,取消他或她的认证。在此之后,您将无法获发牌在美国的任何地方

 

联系卫生与健康(DOH)的按摩治疗师的调查经验丰富的律师。

生律师事务所的律师提供法律代表的按摩治疗师在卫生部(DOH)的调查,许可事项和其他类型的卫生专业人员和供应商的调查。

如要生律师事务所联系,请致电(407)331-6620或(850)439-1001,访问我们的网站www.TheHealthLawFirm.com。

 

作者简介:乔治·F. Indest III,法学博士,法学硕士,MPA,委员会认证的卫生法中的佛罗里达州的律师。他是总裁兼执行合伙人的生律师事务所,其中有一个国家的做法。其主要办公地点设在佛罗里达州奥兰多市,区。 http://www.TheHealthLawFirm.com健康律师事务所,1101道格拉斯大道。,阿尔塔蒙特斯普林斯,FL 32714,电话:(407)331-6620。

克里斯托弗·布朗,JD,是与生律师事务所的律师,其中有一个国家的做法。其主要办公地点设在佛罗里达州奥兰多市,区。 http://www.TheHealthLawFirm.com健康律师事务所,1101道格拉斯大道。,阿尔塔蒙特斯普林斯,FL 32714,电话:(407)331-6620。

Florida Suspends the Licenses of 81 Massage Therapists

佛罗里达州暂停许可证的81个按摩治疗师

据一些来源,国家有关部门宣布暂停超过80按摩治疗师的执照,出现欺诈手段获得的牌照的帮助下,雇员与天然健康的佛罗里达大学。 2012年9月19日,81的紧急停牌订单(ESOS)签署,暂停牌照的按摩治疗师正在进行的调查的一部分。

要看到整个佛罗里达州州长办公室的新闻稿,请点击这里

 

调查发现,超过200治疗师取得执照的欺诈。

根据坦帕湾时报“,今年早些时候,佛罗里达州卫生署(DOH),清水贩运人口特别工作组以及南佛罗里达州的人口贩运问题特别工作组开始调查多种按摩治疗业务。调查转向了200多个按摩治疗师,他似乎已经以欺诈手段获得他们的按摩治疗执照。

 

佛罗里达州的按摩学校员工协助获取欺诈许可证。

它被认为是200人没有注册按摩治疗学校,但没有收到成绩单,从佛罗里达大学的天然保健品,显示他们完成训练。坦帕湾时报“的文章指出,这些人涉嫌个人谁曾在佛罗里达州的一个按摩学校的誊本,以换取支付10,000元及15,000元。

,然后用来按摩执照,卫生署的成绩单。

州长现在已经订购了7天的审查,以确保它们符合执照的要求和规定的按摩学校。当局相信,更多的悬浮液可能会被发出。

 

按摩治疗师的悬浮思想被捆绑到人口贩运。

根据坦帕湾时报“,在新闻发布会上说,当局紧急停工令,在某种程度上,是一个努力的目标佛罗里达州的人口贩运问题。当局说,按摩院是一个典型的地方寻找人口贩运的受害者。

当局还表示,他们不知道,如果这81假的按摩治疗师是人口贩运的受害者。很明显,但是,他们没有合法经营。

点击这里阅读整篇文章,从坦帕湾时报“

 

按摩治疗师的日常法律咨询。

我们经常提醒按摩治疗师和其他持牌的健康专业人士与我们有一个法律咨询:

1。不要说任何卫生署(DOH)研究员,直到你有一个经验丰富的卫生法律律师说。
2。不要让任何书面陈述,或响应卫生署的任何字母,直到你有一个经验丰富的健康律师说。
3。读一切你收到,请务必在截止日期前提交选举的权利(EOR)语句,但只有在与经验丰富的健康律师咨询。
4。你不应该尝试没有律师为自己辩护。
5。尝试谈谈你的出路的情况或解释它在你身边只会伤害你。
6。许多类型的按摩治疗师,保险实际支付的律师来保护你,在这种情况。

 

联系卫生与健康调查部的按摩治疗师经验丰富的律师。

生律师事务所的律师提供法律代表健康(DOH)调查和其他类型的卫生专业人员和供应商的调查部的按摩治疗师。

如要生律师事务所联系,请致电(407)331-6620或(850)439-1001,访问我们的网站www.TheHealthLawFirm.com。

 

作者简介:乔治·F. Indest III,MPA,法学硕士,法学博士,是由佛罗里达州的律师卫生法中委员会认证的。他是总裁兼执行合伙人的生律师事务所,其中有一个国家的做法。其主要办公地点设在佛罗里达州奥兰多市,区。 http://www.TheHealthLawFirm.com健康律师事务所,1101道格拉斯大道。,阿尔塔蒙特斯普林斯,FL 32714,电话:(407)331-6620。

 

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

当你的按摩执照在被调查或者有其它的纪律处分,你这时选择自动放弃你的执照随之带来的后果

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. 佛州注册的健康法的律师。

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

很多按摩师可能没想到他们的按摩执照被纪律处分所带来的长期严重后果。期中包括他们的执照在被调查中或者其它的未决定的控诉,而他们却在此时选择放弃他们的执照,虽然这篇文章是专门为按摩师们而写的,但是同样适用于医生,护士,药剂师,牙医,精神健康咨询师和及其他持有健康卫生执照之类的专业人士。

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

 

如果在收到调查你的执照通知或其它未决定的控诉,你选择放弃执照,这会被当作取消执照一样看待。有关部门会向上级部门汇报,并且处分也是一样的,在有些案例,情况可能会更严重,即如果你选择自动放弃执照,那同样意味着你选择放弃申请其它执照的机会。

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

即使仅给你的执照予纪律处分,如暂停、检验、或者限制等等。也将会带来长期严重的副作用。很多人不清楚按摩执照被处分,吊销或者自动放弃所带来什么样的后果,下面将详细介绍

Reports to National Organizations on the Discipline.

向全美有关医疗组织汇报。

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

首先也是最主要的,纪律处分(包括自动放弃)将会成为公共的档案。它也会被上报给国家汇报机构。包括全美专业人员档案库和NCBTMB(全美考试中心)。

As a result of the report to the NPDB, the Office of the Inspector General (OIG) of the U.S. Department of Health and Human Services (HHS) will probably start action to exclude the disciplined therapist from the Medicare Program and place him or her on the OIG’s List of Excluded Individual’s and Entities (LEIE). This will bar you from the Medicare Program or working for or contracting with anyone else who does (including insurer’s medical clinics and most health care providers). This by itself will also have many negative consequences. For example, if you are excluded from the Medicare Program you are automatically placed on the U.S. General Services Administration (GSA) “debarred” list. You

are automatically excluded from working for or contracting with, in any capacity, any organization, individual or agency that has any government contracts or accepts any federal funding. This act can bar you from working for a public school, working as a real estate agent, or many other jobs.

汇报给全美专业人员资料库的后果是,美国人力资源总调查办公室可能就会采取行动把受过纪律处分的人员排除在申请medicare的范围之外,并且把这些人员放在总调查的名单上。这可能就会把你排除在medicare 范围之外或者把你排除在雇用或者签合同的范围之外(包括保险公司的门诊医疗和大多数的医生。同时它本身也还有很多其它的副作用,例如,如果你被排除在接受medicare的范围之外,也就是说、你会自动地被放置于美国总行政服务“禁止”名单上。而且你也会自动被拒绝申请政府方面或者与政府资金有关的工作,这也会阻止你申请学校、房地产代理人、及其它多方面的工作。

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

NCBTMB(全美考试中心)也会跟着采取行动取消你的全美证书,这就意味着你得不到任何州的执照。

Summary of Adverse Consequences of Revocation or Other Discipline.

吊销执照或其他纪律处分总结。

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

下面总结了按摩执照收到处分的严重后果

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

1按摩执照纪律处分可能会影响到你的其他方面的执照,如护士,针灸师,医生,正骨助理师,护士助理,家庭护理员等等

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

将会影响你将来获取其它卫生专业方面的执照。

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

可能会影响到你自己的或者与别人合伙的按摩生意的执照。

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

4如果你有其他州的执照,其他州也可能会开始采取行动指控你的执照。

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

5.NCBTMB(全美考试中心)也可能会开始采取行动吊销你所获得的证书,这将意味着任何其他州都可能会采取行动指控你。

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

6.这个事件按规定必将回报给全美专业从业人员档案库,此档案将会跟随你50年。

7. The OIG of HHS will take action to exclude the provider from the Medicare Program. If this occurs, (and most of these offenses require mandatory exclusion) the provider will be placed on the List of Excluded Individuals and Entities (LEIE) maintained by the OIG HHS.

7全美人力资源总调查办公室将会把你排除在“medicare”之外(这些人员是被强制排除的)如果真的是这样的话,这些人员将会被全美人力资源总调查办公室放在排除人员的名单上。

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

 

8. 如果以上发生了,这些从业人员将会自动被限制在申请政府合同一类的事情之外,而且他们也将会出现在政府服务“排除”在外的名单之上。

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

9.第3担保人(如健康保险公司,HMO等等)也将会终止你的专业合同,或者中止与那个机构的保险服务。

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

10.除了以上提及的之外,任何被AHCA授予执照的部门(医院,老人院,公共医疗门诊,残疾人员之家等等) 这些部门都要求背景调查,那么雇佣人员如果被发现背景有污点,他们就会被汇报给雇主,那么他们就得不到工作机会。

What Can be Done?

 

应该怎么做呢?

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

如果你不清楚后果就填写了放弃的表,按摩委员会还没有受理的话,你可以要求撤回,那么我们就可以写信给委员会的负责人表明你不清楚此事的后果就错误的填写了放弃表,现在按摩师要求撤回此表。我们将会立即寄一封挂号信(保留复印件,表明我们有证据我们寄了信。

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

同时,你也必须提出要求正式的听证去反驳对你的指控。我们通常在同一的时间和用同样的方法去做。如果你不要求正式听证,那么就等于你放弃了自己的权利去反驳自己是清白无辜的

 

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

如果你要求非正式的听证,那么你就犯了一个大错,因为非正式听证表明你承认了对你的指控的一切都是事实成立的。你承认你是有罪的,因为你已经放弃了去反驳你是无罪或清白的权利。在非正式听证会,你只不过与他们争辩怎么惩罚你而以,此时你是不再允许提供证据来证明你的清白无辜了。

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

如果你已经寄交了非正式听证的申请,但是没有意识到,那你应该立即要求把非正式听证转换正式听证,那么你就可以有机会去证明你是清白的了,在此中情况下你很有必要呈交一份要求正式听证的请愿书,并且表明你要反驳什么和为什么要反驳。

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

案件将会被送到行政法官那里,卫生厅(按摩委员会主管部门)被要求呈交他们所拥有的大量的清楚的反对你的证据。事实上你用不着呈交任何证据,因为卫生局已经拥有大量的证据来指控你。

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

紧急停止命令,上诉和权利选择表。

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

在佛州,如果你收到了紧急停止命令,你也可以到法院上诉。问题是上诉是有技巧的,并且是非常昂贵的,你可以打电话请教有经验的上诉律师。另外,上诉法庭只裁定法律,而不是事实,上诉法庭将会接受在紧急停止命令中所说的一切都是真实的,这不是一个事实的听证会,只是合法的辩论。如果以上所说的发生的话,你的案件将会被推迟,这样你的控诉可能失败。这不是你的正确选择。

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

然而,如果这是紧急停止命令,你就有要求紧急加快处理的权利。如果你有证据和事实,那末这将是证明你清白的你的最佳选择。

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

另外,你可能还会有另外的文件指控你,即行证控诉,当你收到行证控诉时,你可能认为与紧急停止命令是一回事。当此事发生时,你会给予听证的权力(即权力选择表)。上面以提到过,你应该要求正式听证来反驳对你的指控,这是唯一证明你是清白的途径。你要确定必须在21天之内寄出,最好要咨询有经验的律师。什么也不要承认,卫生局已经拥有大量的事实来指控你。

The Need for an Experienced Health Law Attorney.

 

你需要聘请有经验的律师。

 

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

如果你没有受过专业合法的训练,你想为什么辩护是很困难的。非律师人员可能会犯下很愚蠢的错误,如包括呈交书面的陈述,这些陈述将被日后用来指控他们的材料,与卫生厅的调查人员或者办事员交谈,与卫生厅的律师交谈,并且放弃他们的权力等

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

很多不是健康专业法的律师,可能不清楚其中的过程。他们不明白类似刑事犯罪方面的申诉权力同样适用于健康法律方面。因此你需要聘请有经验的健康法律方面的律师。尤其是在佛州注册的健康法法律方面的律师。

What You Should Do.

你应该怎样做呢?

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

你的底线是你是无辜的,你要反驳对你的指控,你应该这样做:

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

如果你拥有专业执照保险,如HPSO保险,那末了解一下他们是否包括了合法的执照反驳的费用。许多保险包括此项,我们知道HPSO包括。

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

立即行动起来,好好的运动你的权力,确保每一样你收到的文件都在截止日期以前寄出。

 

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

不要打电话给卫生厅调查人员,办事员,卫生厅的律师或委员会成员。

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

不要与卫生厅的调查员,委员会成员,卫生厅的办事员或卫生厅的律师有任何的书面或口头的交流。

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

反驳任何可能对你的指控,包括NCBTMB(全美考试中心)或者总调查办公室

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

不要承认任何事情,因为卫生厅已经拥有大量的证据来指控你。

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

保留你所有寄出的文件的复印件及邮寄的证据(如挂号信的收据)。

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

聘请在按摩方面或有与卫生局打交道有经验的律师(咨询律师真正做过什么)

这是首要任务,不要等到最后。

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


联系在按摩执照方面与卫生局打交道有丰富经验的律师。
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.
健康法律师楼的资深律师提供代表按摩师在执照调查,其他执照方面问题及另外的一些专业执照的问题方面的服务,我们有着与卫生局打交道的丰富经验。

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

 

联系健康法律律师楼,请打电话(407)331-6620或者(850)439-1001请浏览我们的网站www.TheHealthLawFirm.com

 

 

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

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

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

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

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

Reports to National Organizations on the Discipline.

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

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

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

Summary of Adverse Consequences of Revocation or Other Discipline.

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

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

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

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

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

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

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

7. The OIG of HHS will take action to exclude the provider from the Medicare Program. If this occurs, (and most of these offenses require mandatory exclusion) the provider will be placed on the List of Excluded Individuals and Entities (LEIE) maintained by the OIG HHS.

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

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

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

What Can be Done?

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

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

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

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

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

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

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

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

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

The Need for an Experienced Health Law Attorney.

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

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

What You Should Do.

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

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

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

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

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

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

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

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

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

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

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

About the Author: George F. Indest III, J.D., M.P.A., LL.M., is Board Certified by The Florida Bar in Health Law. He is the President and Managing Partner of The Health Law Firm, which has a national practice. Its main office is in the Orlando, Florida, area. 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.
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