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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.

 

Failed Pre-Employment Drug Test for Nursing Position

Whether you are still in nursing school, just graduated from nursing school or seeking new employment as a nurse you will likely need take a drug test as part of the pre-employment process. Also, it is not uncommon for nurses and other healthcare providers to submit to random drug testing even after they are employed. Some nurses are taking illicit drugs and it should come as no surprise if they fail their drug test. However, there are individuals who are shocked to find out that they have failed a drug test because they are not knowingly taking any illicit drugs. Some nurses may have false positives on drug tests for various reasons not related to drug abuse. One common way that nurses fail drug tests is when they take prescription drugs that may contain prohibited drugs as part of the formula. For example, some drugs may contain a very small percentage of methamphetamine. Nurses who take prescription drugs without a prescription or any legitimate medical reason for using the drug can also subject your license to discipline.

If you have a legitimate problem with drugs or alcohol the Board of Nursing might require you to attend rehabilitation center or treatment facility. If you fail your drug test many hospitals require the nurse to self-report to the Intervention Project for Nurses (“IPN”). If you choose not to self-report they will likely report you. You should speak with a health law attorney to determine whether self-reporting to the IPN is the right decision for you. You should review your hospital’s policies and procedures manual to determine how the hospital handles these types of matters internally. The manual should also inform you of whether IPN reporting is mandatory or voluntary.

The IPN was created by the Florida Legislature and is the only case management program recognized by the Board of Nursing. The IPN is comprised of case managers, administrative staff and psychiatrists, psychologists, and addictionologists whose main goal is to determine whether the nurse can safely perform her duties. However, in some instances nurses may pursue private treatment options rather than the IPN. There are several factors that our firm will use to determine whether IPN Florida is the best option available for you to avoid significant licensing restrictions or revocation.

Nurses who submit to the IPN must sign a five year contract agreeing to monitoring, counseling meetings, regular psychiatric visits, random urinalysis testing, mandatory notification to all employers that you are in IPN and the reasons why and prohibitions on drinking alcohol or taking any medication without prior approval by IPN. Typically, it is impossible to depart the IPN program after you’ve agreed to be a part of it without losing your nursing license. In addition to losing your license you will be reported to the National Practitioner Data Bank (NPDB) and face exclusion from Medicare and Medicaid programs.

Many nurses fail the IPN plan because they can’t afford to keep up with its requirements. Nurses are responsible for the costs of drug tests, collection fees, therapy sessions, and visits with addiction professionals. Failure to meet the requirements of the IPN program will result in your name being reported to the Department of Health and formal action will be taken against your license.

If you have failed your drug test you will receive correspondence from the Department of Health requiring you to relinquish your nursing license for a specified period of time. After that time period has expired, you may re-apply for your license and if granted you will be placed on a probationary status. While on probation you may be required to do periodic call-ins for random drug testing. Unfortunately, even after you’ve completed monitoring agreement with the IPN you could still have action taken against your nursing license.

If your attorney is unable to resolve the issue internally a complaint will be filed against you. If a complaint is filed against you will have to present yourself to a hearing at which time there will be a discussion of the evidence by a hearing officer or Probable Cause Panel. These hearings are governed by Florida’ Nurse Practice Act. If you can prove that the allegations against you are not true then the panel or hearing officer will rule in your favor. If you are unsuccessful at the hearing you can appeal the decision through the judicial system.

Before appearing before a Probable Cause Panel, you should obtain several character references, prior negative drug tests, polygraph testing, letter of explanation, letter of apology, and you should complete your own evaluation by a board-certified psychiatrist or addiction specialist. These materials will lessen the severity of the punishment handed down by the panel.

The Board of Nursing may issue a fine, reprimand of your nurse’s license, require evaluation by an IPN approved psychologist or addictionologist, or revocation of your license if the case is severe. Fines for first time offenses range from $250 to $500 and it can also include a suspension of your license and an IPN evaluation. Fines for second offenses include a $500 fine, possible suspension, and IPN evaluation, or a revocation of your license.

DOH investigators typically complete these types of investigations and report their findings within 45 days. If they determine that you were abusing drugs or alcohol the Surgeon General will issue an Emergency Suspension Order (“ESO”). The ESO will suspend your license pending the completion of the proceedings. During this time, the nurse will be unable to practice in Florida and most likely in any other jurisdiction where he holds a license.

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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 information listed above.

All of the information and references made to laws, 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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