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.

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

LOL Blog Label 2By Lance O. Leider, J.D., The Health Law Firm and George F. Indest III, J.D., M.P.A., LL.M., Board Certified by The Florida Bar in Health Law

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

Click here to read Section 480.0475, Florida Statutes.

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

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

Exceptions to the Law.

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

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

Massage Therapy Businesses as Primary Residence.

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

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

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

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

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

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

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

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

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

Comments?

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

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

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

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

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

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

LOL Blog Label 2By Lance O. Leider, J.D., The Health Law Firm and George F. Indest III, J.D., M.P.A., LL.M., Board Certified by The Florida Bar in Health Law

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

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

Click here to read Section 480.0535, Florida Statutes.

This statute became effective on July 1, 2012.

Documents Required While Working in a Massage Therapy Establishment.

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

Valid identification includes:

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

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

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

Penalties for Not Complying.

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

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

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

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

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

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

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

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

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

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

Comments?

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

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

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

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

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

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 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.