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The Florida Department of Health Accused me of Prostitution and Practicing without a Massage Therapy License…Now What?

What is a Massage?

According to Florida Statute, a “massage” means the manipulation of the soft tissues of the human body with the hand, foot, arm, or elbow, whether or not such manipulation is aided by hydrotherapy, including colonic irrigation, or thermal therapy; any electrical or mechanical device, or the application to the human body of a chemical or herbal preparation.

A “massage therapist” is a person licensed by the Florida Department of Health (“DOH”) who administers massages for compensation. You must be at least 18 years old, possess a high school diploma or its equivalent and completed a course of study at a board-approved massage school or apprenticeship program in order to qualify for licensure as a massage therapist.

An “apprentice” means a person approved by the board to study massage under the instruction of a licensed massage therapist. A “designated establishment manager” is a Florida licensed massage therapist who is responsible for the operation of a message establishment and is designated as such with the DOH.

 

Massage Establishment Licensure Requirements

A massage establishment may only operate if it has received a license to do so by the DOH. If the DOH determines that the proposed establishment would fail to meet the standards of the Board of Massage Therapy (“Board”) the DOH must deny the application for license in writing and list the reason for the denial. The applicant has the opportunity to correct any deficiencies and reapply for licensure. If you show that you can reasonably meet the standards of the DOH for the operation of a massage establishment then the DOH will grant the license once the licensing fee is paid, subject to any restrictions that the DOH may impose.

A massage establishment license issued to an individual, partnership, corporation or limited liability company may not be transferred from the licensee to another individual, partnership, etc. However, a license may be transferred from one location to another after inspection and approval by the Board and payment of the inspection fee. Additionally, a license may be transferred from one business name to another after approval by the board and payment of the fee.

A massage establishment must have a designated establishment manager. Failure to have a designated establishment manager practicing at the location of the establishment will result in suspension of the establishment license.

By January 1, 2021, a massage establishment must implement a procedure for reporting suspected human trafficking to the National Human Trafficking Hotline or to a local law enforcement agency and must post in a conspicuous place within the establishment, which is accessible to employees a sign with the relevant provisions of the reporting procedure.

 

Documents Required while working in a Massage Establishment

Any person that is employed by a massage establishment and any person performing massages must provide to any DOH investigator or law enforcement officer a valid form of government identification while in the establishment. Examples of valid identification includes an unexpired driver license or identification card issued by any state or territory of the United States, a valid and unexpired United States passport, green card, employment authorization card, or a naturalization certificate.

If you operate a massage establishment you must provide a valid form of government identification and a copy of valid government identification for each employee and any person performing massages in your establishment. If you fail to provide these documents you can be punished with a maximum of 60 days in jail and/or a maximum fine of $500 for your first violation.

Prohibited Acts and Grounds for Discipline

  1. Valid License to Practice

No one may hold oneself out to the public as a massage therapist or practice massage therapy without a valid license to do so or special exemption from licensure. You may not operate a massage establishment without first receiving a license from the DOH. The owner of a massage establishment must not: (a) permit an employed person to practice massages without license to do so; (b) present as his or her own the license of another person; (c) allow the use of his or her license by an unlicensed person; (d) give false or forged evidence to the DOH in obtaining any license; and (e) falsely impersonate another license holder. If you do any of the aforementioned acts you may be found guilty of a misdemeanor of the first degree, which is punishable by imprisonment up to one year and/or a maximum fine of $1000 per occurrence.

 

2. Action Against your License

According to Florida Statute §480.046(1)(b), you may be subject to discipline by the DOH if your license to practice massage therapy has been revoked, suspended or otherwise acted against by the licensing authority of another state, territory or country. This means that if your license in New York is suspended then the Florida DOH may or may not decide to suspend your license as well or worse based on the facts and other circumstances. Other common acts that constitute grounds for discipline include, but are not limited to, (i) false, deceptive or misleading advertising; (ii) conviction of a crime in any jurisdiction which directly relates to the practice of massage or the ability to practice massage; (iii) attempting to induce or engage a client in unlawful sexual misconduct through advertising; (iv) aiding or assisting any unlicensed person to practice massage therapy; (v) being unable to practice massage with reasonable skill and safety due to illness or use of alcohol, drugs, narcotics, chemicals or any other material that impairs your mental or physical condition; (vi) practicing beyond the scope permitted by law when the licensee knows or has reason to know she is not competent to perform; (vii) delegating professional responsibilities to a person that the licensee knows or has reason to know is not qualified to perform; (vii) refusing to allow DOH inspector to inspect your massage establishment during regular business hours; (ix) failing to maintain clean and sanitary conditions in your massage establishment; and (x) practicing at a place that is not duly licensed as a massage establishment except for at the residence or office of a client, sports event, convention or a trade show.

 

3. Prostitution

Prostitution means the giving or receiving of the body for sexual activity for hire but excludes sexual activity between spouses. It is unlawful to (a) own, establish, maintain, or operate any place for the purpose of prostitution; (b) offer or agree to secure another for the purpose of prostitution; (c) receive or agree to receive any person into any place for the purpose of prostitution or to permit any person to remain there for that purpose; (d) to solicit, induce, entice or procure another to commit prostitution; and (e) to purchase the services of any person engaged in prostitution.

DOH must issue an Emergency Order to suspend the license of a massage therapist or establishment if the DOH is notified that the massage therapist or any person with an ownership interest in the establishment has been found guilty of or has entered a guilty plea or nolo contendere, regardless of the adjudication, of any of the following felony offenses in this state or any other jurisdiction: kidnapping, false imprisonment, luring or enticing a child, human trafficking, human smuggling, sexual battery, relating to procuring a person under the age of 18 for prostitution, selling or buying of minors into prostitution, coercing another to become a prostitute, deriving support from the proceeds of prostitution, sexual performance by a child, transmission of material harmful to minors to a minor by electronic device or equipment, and lewd or lascivious acts committed upon or in the presence of a person under the age of 16 or any elderly or disables person, to name a few.

 

4. Penalties

If you perform any of the prohibited acts the DOH will deny your license or impose other penalties against an applicant for licensure. The DOH will revoke or suspend the license of the massage establishment if any jurisdiction has entered a final order or other disciplinary action taken for sexual misconduct involving prostitution, crimes related to the practice of massage therapy involving prostitution or a conviction or plea of  guilty or nolo contendere to any misdemeanor or felony crime related to prostitution. If this occurs, the establishment owner may not reapply for an establishment license and may not transfer the license. The designated establishment manager who was found to have committed one or more of these acts may not reapply for a license.

 

5. Hours of Operation

A person may not operate a massage establishment between the hours of midnight and 5 a.m. unless your establishment is located in a healthcare facility, healthcare clinic, hotel, motel, or bed and breakfast, a timeshare property, public airport or a pari-mutuel facility.

Notice from DOH Regarding Unlicensed Massage Therapy Activity

You will receive a Case Summary along with the notice, which will list all of the possible violations, the contact information for the informant (if available), the date that the report/complaint was received by DOH and any investigation notes available at that time. The Investigative Services Report will list Massage Establishment Requirements generally and whether or not you have met those requirements.

The DOH notice usually gives you 20 days after receiving the letter to either (1) submit a written response or (2) call DOH’s office to schedule an interview. Additionally, they ask for you to provide your curriculum vitae and specialty even if you choose not to submit a written response. Subsequently, a Probable Cause Panel will convene to determine whether based on the evidence before them that a violation has occurred. You can make a written request for a copy of the investigative file after the investigation is complete regardless of whether the Probable Cause Panel decided that you have committed a violation.

It is not mandatory to submit a written response to the Department of Health and you have the right to be represented by an attorney. However, depending on the circumstances, you may want to provide supporting documents to the DOH otherwise all the investigators (and potentially the Probable Cause Panel) have to go off of is the investigation notes. If you do submit a written response it becomes part of the public record and absent extenuating circumstances it can likely be used against you in an administrative proceeding before an Administrative Law Judge. Keep in mind that in order to alleviate DOH and the Board’s concerns about the alleged activity that there will be an unannounced re-inspection of the establishment at some point. It is important that any perceived violations do not remain during that re-inspection period or else you risk receiving an Administrative Complaint where the DOH may try to take significant action against your license.

 

Conclusion

The DOH and law enforcement officers are making significant efforts to investigate and arrest people who are engaging in human trafficking and prostitution in massage establishments. In determining what action is appropriate the Board must consider what sanctions are necessary to protect the public. Typically, if the ground for disciplinary action is the first-time violation of a practice act for unprofessional conduct and no actual harm to the patient occurred, The Board, must issue a citation in accordance and assess a penalty. If the Board determines that revocation of a license is the appropriate penalty, the revocation is permanent. However, the Board may establish by rule requirements for reapplication by applicants whose licenses have been permanently revoked.

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It should be noted that I am not your lawyer (unless you have presently retained my services through a retainer agreement). This post is not intended as legal advice, it is purely educational and informational, and no attorney-client relationship shall result after reading it. Please consult your own attorney for legal advice. If you do not have one and would like to retain my legal services, please contact me using the contact information listed above.

 

All information and references made to laws, rules, regulations, and advisory opinions were accurate based on the law as it existed at this time, but laws are constantly evolving. Please contact me to be sure that the law which will govern your business is current. Thank you.

 

AHCA Application for Exemption from Disqualification

If you are reading this article it means that you have probably received a letter from the Agency for Healthcare Administration (“AHCA”) stating that they have uncovered criminal offenses that disqualify you from working for a health care provider. AHCA may have uncovered this offense a result of background screening submitted as part of the employment process for a health care provider and/or participation as a Medicaid provider. This applies to clinical staff as well as facility owners, administrators and chief financial officers and those seeking enrollment as a provider in the Florida Medicaid program. Fear not, because you may be eligible to file an Exemption from Disqualification if you meet certain criteria.

Am I Eligible for Exemption?

Our firm can assist you with demonstrating to AHCA by clear and convincing evidence that an exemption from disqualification should be granted. The application will only be reviewed once all relevant supporting documents are received by AHCA. You are only eligible for Exemption from Disqualification if:

  1. You have been lawfully released from confinement, supervision or other nonmonetary condition imposed by the court for a disqualifying misdemeanor criminal offense;
  2. At least 3 years after you have been lawfully released from confinement, supervision, or other nonmonetary condition imposed by the court for a disqualifying felony criminal offense;
  3. You have completed any court-ordered fee, fine, fund, lien, civil judgment, application, costs of prosecution, trust, or restitution as part of the judgment and sentence for any disqualifying felony or misdemeanor in full; and
  4. If you have been designated as a sexual predator, sexual offender or career offender you are not eligible for an exemption from Disqualification.

 

Filing the Application

Filling out the application can be a bit tricky, so you should definitely hire a health law attorney that has experience with doing so in order to prevent delays in processing your application. In addition to completing the Application for Exemption from Disqualification you will need to provide AHCA with the following:

  1. Current Level II Screening;
  2. Arrest Reports;
  3. Court Dispositions;
  4. Signed Statement (only if you cannot obtain the arrest report and/or court disposition);
  5. Probation and/or Parole records;
  6. Letters of Reference; and
  7. Documentation of Rehabilitation

It is important to note that when you apply for exemption you must provide all arrest reports, including those that were not specifically listed in the notice that you received from AHCA. You will also need to provide all court dispositions no matter the plea, judgment, verdict or even if it was sealed or expunged from your record. All of these documents will need to be neatly organized and AHCA must receive the documents within 30 days from receipt of its letter. It may take a little bit of legwork to retrieve these documents, so it is important to contact our firm as soon as possible so that we don’t miss the deadline. AHCA rarely grants extensions for filing the application.

Finally, if you are a certified or licensed healthcare professional you may also have to file an application for exemption with the Florida Department of Health (“DOH”). Florida Statute 408.809(7)(a) states that AHCA may grant an exemption from disqualification to a person who is subject to this section and who: (1) Does not have an active professional license or certification from the DOH; or (2) has an active professional license or certification from the DOH but is not providing a service within the scope of that license or certification.You may also have to submit a signed background screening privacy policy acknowledging receipt of the privacy policy. Once the DOH receives your application they will review it and make a decision as long as that person is working in the scope of their license or certification.

What Happens After Filing?

Once AHCA received the documents, it will be transferred to the Exemption Team and assigned to one of their analysts. As stated earlier, the analyst is looking for clear and convincing evidence that the employee should not be disqualified from employment. The Agency will consider the following:

  • The circumstances surrounding the criminal incident(s) for which an exemption is sought;
  • The time period that has elapsed since the incident(s);
  • The nature of the harm caused to the victim;
  • The history of the employee since the incident(s);
  • Any other evidence or circumstances indicating that the employee will not present a danger if employed or continued employment is allowed; and
  • Whether the applicant has been arrested for or convicted of another crime, even if that crime is not a disqualifying offense.

Once you’ve submitted your application it takes approximately 30 days for AHCA to render its decision to you. Exemptions granted by one agency will be considered by other agencies, but it is not binding on subsequent agencies. It is possible for AHCA and DOH to deny your application even though you feel you meet the criteria for an exemption. In those instances, our firm will represent you before AHCA and DOH Boards if you chose to contest the Agency decision. You have 21 days from the date you sign for the certified letter to request an appeal. The administrative law judge will only decide whether the agency’s intended action is an abuse of discretion.

Job Status

Are you allowed to continue to work for your employer after you’ve submitted the application for Exemption from Disqualification? It depends on the circumstances. If you were screened and hired by your current employer on or before June 30, 2014 and this disqualification was due to a rescreening by the same employer, you may continue work if you meet all of the following criteria:

  1. You are eligible to apply for exemption;
  2. Your disqualifying offense was not disqualifying at the time of your last screening, but is now disqualifying and was committed before the date of your last screening;
  3. Your employer agrees that you may continue working; and
  4. You submit your application timely.

According to Florida Statute, 408.809(4) an employee may continue to perform her duties and her employer may continue to allow her to have contact with any vulnerable person (i.e. physical therapy patients) that would place employee in a role that requires background screening while her application for exemption from disqualification by the agency is being processed and under review. You also must make sure that your license stays active if you are a licensed healthcare provider, which means that you should submit any renewal forms and correct any omissions to prevent your license from expiring.

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It should be noted that I am not your lawyer (unless you have presently retained my services through a retainer agreement). This post is not intended as legal advice, it is purely educational and informational, and no attorney-client relationship shall result after reading it. Please consult your own attorney for legal advice. If you do not have one and would like to retain my legal services please contact me using the contact information listed above.

All of the information and references made to laws, rules, regulations, and advisory opinions were accurate based on the law as it existed at this time, but laws are constantly evolving. Please contact me to be sure that the law which will govern your business is current. Thank you.

What to do if I Received an AHCA Administrative Complaint or Notice of Intent?

Why did I receive this Administrative Complaint or Notice of Intent?

If you have received an Administrative Complaint from the Agency for Health Care Administration (“AHCA”) it means that they are alleging that your healthcare facility (i.e. Nursing Home, Assisted Living Facilities, Skilled Nursing Facilities, or Home Health Agency) has violated one or more sections of the Florida Statutes, the Florida Administrative Code, or both. AHCA will then make the argument that because you have violated these laws that your facility’s license should be revoked or suspended and you may be required to pay an administrative fine. Typically, you have 21 days to respond to the complaint by disputing the allegations or admitting the allegations. Depending on your response and how your case is handled could have a serious long-term impact on you and your practice, which could possibly lead to criminal charges.

AHCA may conduct unannounced inspections on any of the facilities listed above. After AHCA has conducted its survey, the administrator for the facility will be provided with a survey report detailing AHCA’s findings including any deficiencies. These deficiencies will be provided to you in the Statement of Deficiencies.  Deficiencies must be fixed within thirty days after notification and another ten days to present a Plan of Correction with the corrective measures that must be taken to comply with your license’s requirements. Many times, these unannounced inspections occur if an individual has decided to file a complaint against your facility. AHCA then seeks to substantiate those claims that were made by that individual.

How Might this Impact my Healthcare Facility or License?

AHCA maintains a list of all actions that were filed against your facility and if they were resolved via settlement agreements, defaults and dismissals, or by recommended orders. These three outcomes can have different impacts on your license and ability to practice. They are all part of the public record and they may impact the type of penalty that your receive for future infractions.

What to expect at the Division of Administrative Hearings?

The Administrative Hearing before a Florida Administrative Law Judge is governed by the Florida Administrative Code, Florida Rules of Evidence, and the Florida Administrative Procedure Act, F.S. Chapter 120. If you decide to deny the allegations and pursue an Administrative Hearing before the Division of Administrative Hearing (“DOAH”) the case can still be closed or settled prior to entry of a Final Order by the judge if the parties can agree to negotiated terms.  Hearings can either be informal or formal.

At the hearing, if brought by AHCA, the burden is on AHCA to prove “clear and convincing evidence” that the healthcare facility failed to act in a certain way or acted in a way that was otherwise prohibited. If AHCA can’t prove this then that specific Count, Notice of Intent, or the entire Administrative Complaint may be dismissed.

Examples of Violations

Here are some examples of violations that healthcare facilities may get dinged for by AHCA:

  1. Director of Nursing (“DON”) – AHCA requires that a home health agency that provides skilled nursing case must have a director of nursing at all times. If a DON ceases working at that facility the HHA must inform AHCA within 10 days or risk a Class II deficiency.
  2. Advertisements – A person that offers or advertises to the public a service for which registration is required (i.e. nursing home or home health services) must include in its advertisement the registration number issued by AHCA.
  3. Office Hours – Home Health Agency administrator or DON, or their alternates, must be available to the public for any eight consecutive hours between 7:00 a.m. and 6:00 p.m., Monday through Friday of each week. Available to the public means being readily available on the premises or by telecommunications. If an AHCA surveyor arrives on the premises to conduct an unannounced survey and no authorized person is there to provide access to patient records within one hour of the arrival of the surveyor then they have violated licensure requirements. Further, that list of current patients must be provided to the surveyor within two hours of arrival if requested. Failure to do either may be grounds for denial or revocation of the agency license.

Nursing Homes and related Health Care Facilities, such as Home Health Agencies have many statutory requirements and AHCA doesn’t care whether your intended to violate the requirements or not. They will pursue action against you. For example, there are certain Director of Nursing and Administrator requirements (i.e. staffing requirements, notifications to AHCA, limitations on staffing services, etc.) that Nursing Homes and Home Health Agencies must adhere to or risk fines and suspension of their license.

What are the Penalties?

Four different class violations exist, and the fines vary depending on the seriousness of the violation. For example, a Class II violation permits AHCA to impose an administrative fine in the amount of $5,000 for each occurrence and each day that the violation exists, while Class III only imposes a fine not to exceed $1,000. Additionally, AHCA may impose costs related to an investigation that results in successful prosecution, excluding costs associated with an attorney’s time. In other words, if you decide to fight the allegations and you are unsuccessful you may have to pay thousands of dollars in fines and fees related to your investigation. In addition to a fine for a certain class violations AHCA may request revocation of your license.

Florida Statute §400.474 lists various actions taken by a home health agency that are grounds for disciplinary action and the administrative penalties that may be imposed by AHCA. AHCA considers the (1)nature/severity of the violation; (2) actions taken by the administrator to correct violations; (3) prior violations; (4) the effect your violations had on facility residents; (5) financial benefits to the violating facility; and (6) whether this was an isolated, patterned, or widespread deficiency.

Conclusion

It is important to hire a competent health law attorney at the early stages of the investigation who is familiar with these types of cases to handle subsequent hearings. Although it’s not a guarantee, a highly-skilled attorney might be able to mitigate the seriousness of the offenses in the complaint resulting in the reduction or rescinding of fines and action against your license. You and your attorney should decide whether it is best for you to appear before an administrative law judge or negotiate a settlement with AHCA. To better weigh your options a licensed attorney may submit a motion for extension of time to respond to the Administrative Complaint so that you can negotiate a settlement or gather evidence do deny the allegations at the hearing. Alternatively, if you have already submitted your Election of Rights to AHCA, a health law attorney may be able to submit a Motion for Abeyance to continue the case while you explore available options with AHCA.

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It should be noted that I am not your lawyer (unless you have presently retained my services through a retainer agreement). This post is not intended as legal advice, it is purely educational and informational, and no attorney-client relationship shall result after reading it. Please consult your own attorney for legal advice. If you do not have one and would like to retain my legal services please contact me using the contact information listed above.

All of the information and references made to laws, rules, regulations, and advisory opinions were accurate based on the law as it existed at this time, but laws are constantly evolving. Please contact me to be sure that the law which will govern your business is current. Thank you.

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