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Who Enforces Health and Safety Law?

Health and Safety laws are regulated by various agency officials and theses are arguably the most crucial jobs in our community. Most people do not take the time to adequately research their healthcare providers prior to receiving healthcare services or medication. However, several agencies have been established to safeguard and regulate the health and safety of the healthcare services that consumers receive. These agencies can’t replace individual due diligence but they make every attempt to prevent patient harm and to eliminate fraudulent activity in the healthcare system.

Florida Department of Health

The Florida Department of Health (DOH) was the first accredited public health system in the United States. Their mission is to protect and improve on the health of all people in Florida by regulating healthcare practitioners and facilities. They offer programs and services for the Florida community, but they are also responsible for the licensing and regulation of various healthcare practitioners and facilities. Various healthcare professions must be licensed and are regulated via the Florida Department of Health such as: medical doctors, acupuncturist, optometrists, and many more. Certain facilities such as piercing salons and pharmacies are also regulated by the Department of Health. Complaints can be filed against any of the practitioners or facilities, which will then be investigated by an officer for violations. The complaint is referred over to the Probably Cause Panel, which will determine whether to file an Administrative Complaint against the healthcare provider based on the weight of the evidence that is provided by the complainant and the provider who under investigation. It is not uncommon for the DOH to place an emergency restriction on a provider’s license if they pose an imminent danger to patient safety. If a violation is found, the Department of Health will determine appropriate disciplinary action to enforce the regulations, which includes, probation, suspension, or even revocation of a healthcare provider’s license.

Agency for Health Care Administration

The Agency for Health Care Administration (“AHCA”) was established in Florida to regulate the Medicaid system and healthcare providers who offer services to Medicaid beneficiaries. AHCA administers background screening, compiles healthcare data, and monitors the quality of care and civil rights complaints within healthcare facilities. They also license various healthcare facilities throughout Florida such as assisted living facilities, health care clinics, home health agencies, and many more.

Department of Health and Human Services

The Department of Health and Human Services has a family of agencies to provide services on local levels through state and county agencies. Some of these agencies include:

  • Centers for Medicare and Medicaid Services (“CMS”) proposes and publishes regulations yearly for those programs under medicare.gov, healthcare.gov, and more. CMS also enforces compliance with clearinghouses and healthcare providers and conducts audits regularly. CM provides health coverage to more than 100 million people through Medicare, Medicaid, the Children’s Health Insurance Program, and the Health Insurance Marketplace. CMS seeks to strengthen and modernize the Nation’s health care system, to provide access to high quality care and improved health at lower costs.
  • The Centers for Disease Control and Prevention (“CDC”) is one of the most widely known organizations within the Department of Health and Human Services. The mission statement of the CDC to protect the America people from health, safety and security threats, both foreign and in the U.S. Whether diseases start at home or abroad, are chronic or acute, curable or preventable, human error or deliberate attack, CDC fights disease and supports communities and citizens to do the same. CDC increases the health security of our nation. As the nation’s health protection agency, CDC saves lives and protects people from health threats. The CDC conducts critical science and provides health information that protects America against expensive and dangerous health threats, and responds when these arise. This is a science based organization that works to protect communities from health threats. The U.S. Secretary for Human and Health Services has authorized the CDC to carry out and enforce functions for isolation and quarantine to prevent exposure to contagious diseases.
  • The Office of Inspector General (“OIG”) is another department within the Department of Health and Human Services that works to improve the efficiency of many health based programs. They are the largest office in the Federal Government. They investigate complaints based on fraud, waste, abuse, and misconduct. The majority of the agency’s resources go towards the oversight of Medicare and Medicaid — programs that represent a significant part of the Federal budget and that affect this country’s most vulnerable citizens. The OIG has the authority to exclude individuals and entities from Federally funded health care programs for a variety of reasons, including a conviction for Medicare or Medicaid fraud. Those that are excluded can receive no payment from Federal health care programs for any items or services they furnish, order, or prescribe. This includes those that provide health benefits funded directly or indirectly by the United States (other than the Federal Employees Health Benefits Plan).
  • The Food and Drug Administration (FDA) is responsible for protecting the public health by assuring the safety, efficacy, and security of human and veterinary drugs, biological products, medical devices, our nation’s food supply, cosmetics, and products that emit radiation. The FDA conducts research on various food and drug safety protocols. They create reports to share with the general public to spread accurate information. The FDA also works closely with drug manufacturers to ensure the production of safe and effective drugs. They are accountable for overseeing quality control, delays, and discontinuations of drugs and medications. The agency works closely to reduce or prevent shortages. The supervision and regulation of the manufacturing, marketing, and distribution of tobacco products to protect the public health and to reduce tobacco use by minors is also a crucial role played by the FDA.

 

These are just a few of the hundreds of agencies established to protect our communities from safety and health emergencies. Each agency regulates their own sections within each community or program.

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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.

 

Do Doctors and Nurses Have to Self-Report to the Florida Department of Health if Arrested?

In our society, Medical Professionals have always been held to a higher-than-average standard. Doctors, nurses, and physicians must abide by several professional rules of conduct that not many other employees have to keep in mind. This in turn also means that your personal life is up for scrutiny as well. Ethical standards and moral values are usually private assumptions but for those who have chosen the medical field, those normally private matters can have a deep affect your employment status. Any serious off-duty conduct issue must be reported, reviewed, and taken care of on a case-by-case basis.

Florida Requirements for Self-Reporting

In Florida, doctors are required to report all criminal activities committed after they receive their medical license even though it is not in relation to employment and occurs after regular working hours. Any report or complaint filed towards a medical professional will be investigated by the Florida Department of Health. Being placed under arrest can trigger disciplinary action from the state licensing boards. Medical disciplinary actions require a much lower burden of proof than federal cases. It is possible to be penalized, face Medicare/Medicaid exclusion, and potentially have your license revoked based on the severity of the crime and investigation. It is entirely possible that a physician can face the loss of their medical license even if an investigation does not result in criminal prosecution and a conviction at a trial.

Complaints Against Medical Professionals

The most common criminal concerns leading to the harshest disciplinary actions towards a medical professional involve healthcare fraud, solicitation, moral turpitude, dishonesty, or deceit in any jurisdiction in the state. According to the Florida Department of Health’s website, they do not carry out complaints regarding the fees charged for individual procedures, missed, or cancelled appointments, unfair customer service, rudeness or disrespect, bedside manner, professionalism or personality conflicts again medical professionals.

Complaints against medical professionals can lead the Board of Medicine to issue citations based on the type of and severity of the complaint. It is completely free to file complaints against medical professionals. The only potential fees may be for requesting copies of medical records if deemed necessary. Complaints remain confidential until the panel determines reasonable cause, and a violation is issued.

How to Report

According to the Florida Board of medicine, all criminal activities after receiving your medical license must be timely reported. The Board provides various options for reporting including email, online service portal, or via regular mail. If a complaint is issued via sending an email or letter, the correspondence must include the date of the offense, the activity that happened, and the county and state of jurisdiction. The complaint cannot reach processing without the proper information.

The Florida Department of Health’s Medical Quality Assurance (MQA) launched a user-friendly online portal. The portal was developed in collaboration with the Agency for Health Care Administration (AHCA) to allow for easy reporting of any complaints again medical providers from fraud to unlicensed activity and violations. The portal offers education on the different federal agencies for complaints as well.

See below for email, website and address:

MQAOnlineService@FLHealth.Gov
www.mqa-vo.doh.state.fl.us./datamart/voservicesportal
Florida Department of Health

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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.

Do I Need a Biomedical Waste Permit for my Clinic?

Biomedical Waste Permit Regulations

Biomedical waste is the inevitable outcome in most health care offices. Professionals in the health care field need to keep up to date information on the regulations for handling any type of biomedical or hazardous/chemical waste that is a result of services provided. While the most obvious concerns are those of public safety and possible health risks, if not stored or disposed of properly, this waste can also result in thousands of dollars in fines.  There are many types of health care waste to consider: biohazard, chemical, pathological, chemotherapy waste, etc. The waste produced by each office will determine the proper treatment and disposal. The Department of Health along with the state’s environmental and health departments regulate the storage, containment, treatment, and disposal of biomedical waste.

What is Biomedical Waste?

According to the State of Florida’s Bureau of Community Environmental Health, Biomedical waste is defined as any solid or liquid waste that may present a threat of infection to humans. The term includes, but is not limited to, nonliquid human tissue and body parts; laboratory and veterinary waste that contains human-disease-causing agents; discarded disposable sharps; human blood and human blood products and body fluids; and other materials that in the opinion of the Department of Health represent a significant risk of infection to persons outside the generating facility. The term does not include human remains that are disposed of by persons licensed under Chapter 497.

Biomedical Waste Storage and Containment

In Florida, biomedical waste generated from a facility cannot be stored for more than 30 days. The period of allowable storage begins from the moment a non-sharp article of biomedical waste is thrown into a red bag or a sharps container or when a sharps container is sealed. All containers, bags, or packages of waste must be clearly identifiable with the international biomedical waste symbol. All contained waste must remain sealed until treatment occurs. If a container should be ruptured, the original package must be placed into a new container without disrupting the original packaging. Any indoor storage area for biomedical waste must have restricted access and be described in the operating plan.  Outdoor storage areas must be clearly identifiable with the international biomedical waste symbol and have some form of security or protection against theft or vandalism. All symbols must be red, orange, or black and have a contrasting background color. All symbols must be a minimum of 6 inches in diameter.

Disposal of Biomedical Waste

Packages that are compacted should be incinerated or treated via approved treatment process. Other treatments must be approved via written request by the Department of Health. There are various treatment options available: treatments by gas, steam, chemical, dry temperatures, or microwaving are all approved and available. Waste may be disposed by transporting to a sanitary sewer system, an onsite sewage treatment disposal system. The disposal systems must be approved by the Department of Environmental Protection or the Department of Health.

Permitting

All facilities housing biomedical waste shall obtain an annual permit from the Department of Health. The form DH 4089, Application for Biomedical Waste Generator Permit/Exemption and the corresponding fees should be submitted to the local Department of Health facility. This permit needs to be renewed annually no later than September 30th of every year. If any facility eliminates less than 25 lbs of biomedical waste within a 30 day period, it is exempt from having to obtain permits and fee requirements. To qualify for exemption, documentation proving the weight of the waste generated for a 30 day period must be provided. After applications are submitted, the Department of Health will conduct an inspection of the facility to ensure compliance with section 381.0098 of the Florida Statutes. After inspection, the Department will notify if the facility is eligible to receive exemption.

Sharps Storage, Containment and Disposal

A permanently mounted sharps container is mandated by the state of Florida for businesses that use and dispose of needles. It must be labeled with the approved phrases of the international biomedical waste regulations. Containers must always be readily available and as close to the location of use as possible. The container should be disposed of once ¾ full to avoid any potentially dangerous contamination.

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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.

Florida Legal Requirements for an Adult Family Care Home

Adult Family Care Homes are Agency for Health Care Administration (“AHCA” or Agency) licensed facilities that provide care to disabled adults and frail elders in a family-type living environment. These adults choose to live with an individual or a family in a private home. One key distinction between an Assisted Living Facility and an Adult Family Care Home (“AFCH”) is that the Provider must also live in the home, which can be owned or rented by that Provider. The home has to meet the local zoning requirements prior to obtaining the AHCA license. The intent behind the Adult Family Care Home Act is to allow for residents of AFCHs to remain as independent as possible and to avoid placement in a nursing home or other licensed facility.

 

AFCH means a full-time, family-type living arrangement, in a private home, under which a person who owns or rents the home provides room, board, and personal care, on a 24-hour basis, for no more than five disabled adults or frail elders who are not relatives. Personal care services includes individual assistance with or supervision of the activities or daily living and the self-determination of medication, and other similar services. A resident who requires 24-hour nursing supervision may not be retained in an AFCH unless such resident is an enrolled hospice patient and the resident’s continued residency is mutually agreeable to the resident. Certain types of family-type living arrangements are not required to be licensed as an AFCH.

 

Although no more than five adults may reside in the home, the licensed maximum capacity of each AFCH is based on the service needs of the residents and the capability of the provider to meet the needs of the residents. Any relative who lives in the adult family-care home and who is a disabled adult or frail elder must be included in that maximum resident count.

 

AFCH Requirements and License Restrictions

AFCHs must designate at least one licensed space for a resident receiving optional state supplementation. AFCHs are required to provide all residents: (1) room and board; (2) assistance necessary to perform the activities of dialing living; (3) assistance necessary to administer medication; (4) supervision of residents; (5) health monitoring; and (6) social and leisure activities.

 

Each AFCH license is effective for 2 years from the date of issuance or renewal. These licenses are non-transferable and is valid only for the provider named, the capacity stated, and the premises described on the license.

 

AFCHs may advertise but these accommodations and services may not be listed in the yellow pages under the heading of “nursing home” or “assisted living facility”. The advertisement must include the term Adult Family-Care Home and the license number.

 

Resident Requirements

In order to be admitted as a resident of an AFCH, an individual must be: (1) at least 18 years of age; (2) free from apparent signs and symptoms of any communicable disease; (3) capable of self-preservation in an emergency situation involving the immediate evacuation of the AFCH, with ambulation; (4) be able to perform, with supervision or assistance, activities of daily living; (5) not be a danger to self or others; (6) not require licensed professional mental health treatment on a 24-hour a day basis; and (7) not be bedridden, to name a few.

 

Prior to admission to an AFCH, an individual must have a face-to-face medical examination conducted by a licensed healthcare provider. Every year thereafter, or after a significant change, the resident must have a face-to-face medical examination.

 

Prior to, or at the time of admission, the AFCH must provide the resident or their representative with the following: (1) a copy of the AFCH house rules; (2) Resident’s Bill of Rights, and (3) the procedure for making complaints to AHCA, the Department of Children and Families, or the Florida Department of Health.

 

Each resident has a statutorily defined Bill of Rights that the AFCH is required to adhere to. Some of these rights include: (a) living in a safe and decent living environment, free from abuse and neglect; (b) keep and use the resident’s own clothes and other personal property in the resident’s immediate living quarters, so as to maintain individuality and personal dignity; (c) unrestricted private communication, including receiving and sending unopened correspondence, having access to a telephone, and visiting with any person of his or her choice, at any time between the hours of 9 a.m. and 9 p.m. at a minimum; (d) management or resident’s own financial affairs; (e) share a room with the resident’s spouse if both are residents of the home; (f) exercise of civil and religious liberties; (g) access to adequate and appropriate healthcare; and (i) to be free from chemical and physical restraints.

 

Each resident must enter into a residency agreement with the provider, which is to be executed prior to or on the date of admission. The residency agreement must be kept on file for five years after expiration of the agreement. Additionally, each residency agreement must specify the personal care and accommodations to be provided by the AFCH, the rate or charges, a requirement of at least 30 days’ notice before a rate increase, and any other provisions required by AHCA or any other governing agency.

 

A resident shall not be discharged without 30 days’ written notice stating reasons for the move or transfer. The only exception to this written notice requirement is if the resident’s health requires immediate relocation; resident’s behavior poses an imminent danger to self or others, significantly interferes with the orderly operation of the home, or is continually offensive to other residents; or if the AFCH had its license denied, revoked, or voluntarily surrendered its license.

 

Provider Requirements

An AFCH Provider must bet at least 21 years old, live in the home, complete the required training and be able to read, write and complete written materials involved in applying for an AFCH license and maintaining an AFCH.

 

Each AFCH Provider must complete training and education programs. Training and education programs must include information relating to the appropriateness of placement of residents in an AFCH; identifying and reporting abuse, neglect, and exploitation; monitoring the health of residents and identifying and meeting the special needs of disabled adults and frail elders.

 

Conclusion

There are many other considerations that one must take into account when deciding to run an AFCH. An AFCH has certain personal services and supervision requirements, incident reporting requirements, health monitoring, food service and nursing services requirements, relief person and training requirements, records requirements, general requirements, fire safety standards, and emergency procedure requirements that were not addressed in this blog post but are critically important to operating your AFCH. If you are interested in operating an AFCH I would encourage you contact an experience health law attorney at Jones Health Law to assist you with navigating these requirements and others.

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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.

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.

 

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IV Hydration Masterclass: Legal Requirements of Starting an IV Hydration Business

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