Tag Archives: board licensing complaint

Advice for All Massage Therapists: Please Talk to a Lawyer Before You Talk to the Department of Health (DOH) Investigator

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

Massage therapists, I beseech you: please do not talk to a Department of Health (DOH) investigator until you have talked to a health lawyer who is experienced with DOH investigations and board licensing complaints.  Do not answer or respond to even the most basic questions about where you work now, what your address is or if you know patient x, until consulting with counsel.

Admitting to Anything May Hurt Your Case.

We are routinely consulted by massage therapists and other healthcare providers for representation after they have discussed the case and after it is too late to undo the damage they have caused to themselves. Often they do not understand the seriousness of the matter or the possible consequences, until it is too late. Admitting to even the most basic facts causes damage to any possible defense.

Administrative Licensure Investigations are “Semi-Criminal.”

The vast majority of massage therapists and even most attorneys do not realize that DOH investigations concerning complaints against a massage therapist’s license are considered to be “penal” or “quasi-criminal” proceedings.  This means the same laws and constitutional rights apply to them as apply to criminal investigations.  However, since they are also administrative proceedings and not strictly criminal proceedings, investigators do not need to advise you of your Miranda rights or tell you you have the right to remain silent, the right to an attorney, etc.

In any criminal investigation a good criminal defense attorney would always tell you “Do not talk to the investigator” and “Tell the investigator you have a lawyer.”

How Investigators Try to Get You to Not Talk to an Attorney.

DOH investigators, police investigators, FBI investigators and other law enforcement officers, are well trained in investigative techniques and how to get information out of suspects.  Often the approach used is to catch you by surprise before you even know there is an investigation and the investigation is of you.  Another technique used is to lull you into a false sense of security that the investigation is about someone or something else and not you.  Another investigative technique is to convince you that you need to “Tell your side of the story” so that the investigation is accurate.  Yet another is that “Things will go much better for you if you cooperate.”  None of these things are true.

However, if it is truly in your best interest to cooperate or to make a statement, after you consult with your attorney, your legal counsel will surely advise you to do this.  The investigator should not mind waiting until you consult your attorney.  However, many will go to extremes to convince you that you don’t need an attorney and shouldn’t get an attorney.

Consult an Experienced Health Law Attorney.

The attorneys of The Health Law Firm are experienced in dealing with DOH investigators, AHCA surveyors, Drug Enforcement Administration (DEA) agents, FBI agents, police and sheriff’s office investigators, OIG special agents (S/As) and Medicaid Fraud Control Unit (MFCU) investigators. 

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

Disclaimer: Please note that this article represents our opinions based on our many years of practice and experience in this area of health law. You may have a different opinion; you are welcome to it. This one is mine.

Note: This article is for informational purposes only; it is not legal advice.

“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.

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In Florida You Have Fifth Amendment Rights in a Department of Health Investigation of Your License

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

If you are contacted by a Florida Department of Health investigator, did you know that you are not required to make a statement or give any information that can be used against you?  If you are being investigated you have a right to refuse to speak with an investigator pursuant to the Fifth Amendment of the U.S. Constitution and the equivalent rights given by the Florida Constitution, Article 1, Section 9.  However, because the Miranda decision does not apply to administrative proceedings, including licensure investigations, the DOH investigator does not have to inform you of this.

In some states other than Florida, the state’s law is such that a nurse, physician, dentist or other licensed health care professional is required to “cooperate” with the investigation, even though he or she may be punished or lose their license as a result.  THIS IS NOT THE CASE IN FLORIDA.

Florida Licensing Investigations Are Considered to Be “Penal” or “Quasi-criminal” in Nature.

Florida licensing investigations are considered to be “penal” or “quasi-criminal” in nature.  In Florida, a professional’s license is considered to be a property right.  So you also have the constitutional right not to be deprived of it without due process of law.  Due Process of law is guaranteed not only by the Florida and U.S. constitutional provisions cited above, but also by the Fourteenth Amendment of the U.S. ConstitutionDue process of law includes the right to be represented by an attorney in any proceedings that might be initiated that may result in your losing your license.

In Florida, a long history of legal cases has resulted in the common law rule that administrative proceedings that may result in loss of a license must afford all of the protections that a criminal defendant would have in a criminal case.

Case Law in Florida.

In a 2004 case involving the Florida Department of Health, the Florida First District Court of Appeal stated:

Initially, it should not be forgotten that because professional disciplinary statutes are penal in nature, they must be strictly construed with any ambiguity interpreted in favor of the licensee. See Ocampo v. Dep’t of Health, 806 So. 2d 633, 634 (Fla. 1st DCA 2002);  Elmariah v. Dep’t of Prof. Reg., Board of Med., 574 So. 2d 164 (Fla. 1st DCA 1990).

Cone v. Dep’t of Health, 886 So. 2d 1007, 1011 (Fla. 1st DCA 2004).

The Florida Supreme Court confirmed that a licensee could assert a Fifth Amendment right in administrative proceedings in the 1973 case of State ex rel. Vining v. Florida Real Estate Commission, 281 So.2d 487 (1973).

In Vining a real estate broker was charged by the Florida Real Estate Commission of violating the Real Estate License Law.  Id. at 488.  The broker filed a sworn answer, as he was required to do under Florida Statute Section 475.30(1).  Id.  The broker later argued that the Florida statute violated his right against self-incrimination as guaranteed by the Fifth Amendment to the U.S. Constitution and Article I, Section 9 of the Florida Constitution.  Id.

The Florida Supreme Court agreed, holding that “the right to remain silent applies not only to the traditional criminal case, but also to proceedings ‘penal’ in nature in that they tend to degrade the individual’s professional standing, professional reputation or livelihood.”  Id. at 491 (citing Spevack v. Klein, 385 U.S. 511, 87 S.Ct. 625, 17 L.Ed.2d 574 (1967);  Stockham v. Stockham, 168 So. 2d 320 (Fla. 1964)).  More recently, courts have reaffirmed that Vining remains good law in Florida.  See Best Pool & Spa Service Co., Inc. v. Romanik, 622 So. 2d 65, 66 (Fla. 4th DCA 1993);  Scott v. Department of Professional Regulation, 603 So. 2d 519, 520 (Fla. 1st DCA 1992).

In Best Pool & Spa Service Co., Inc. v. Romanik, 622 So. 2d 65, 66 (Fla. 4th DCA 1993), for example, the Court of Appeal reiterated the ability of a defendant to claim the Fifth Amendment privilege in an administrative proceeding.  Best Pool involved a pool owner filing actions for negligence and breach of contract against a pool maintenance contractor and its president.  The circuit court required the president to answer questions at his deposition about his certifying to the county, in an application for license, that the contractor had liability insurance.  The Court of Appeal ruled that the president was allowed to assert his Fifth Amendment privilege with regard to questions on this issue.  The court stated in Best Pool: “requiring Kassover, the president, to answer these questions does violate his right against self incrimination, which applies not only to criminal matters but also administrative proceedings such as licensing.  Id. at 66.

There are many other cases which have held the same.

You Must Be Extremely Cautious When Dealing with a DOH Investigator or Any Investigator.

If you receive notice that a DOH disciplinary investigation has been opened against you, you may not even realize it or understand how serious the consequences may be.  The notice comes in the form of a simple letter or, more often nowadays, a phone call, followed by a letter.  The letter will be on Florida Department of Health letterhead and will, in most cases,  be signed by a person whose job title is “Medical Malpractice Investigator,” “Quality Assurance Investigator” or some other title that might throw you off.

If you think you are giving information to be used in connection with a true quality assurance matter, such as would be confidential and privileged in a hospital or health institution, think again.  This is an investigation that could result in your having to pay thousands of dollars in fines, thousands of dollars in investigative costs and suspension or loss of your license.  Worse yet are the other consequences that having discipline on your professional license will bring, including difficulty in obtaining employment, reports being made to national data banks, etc.  Please see some of the other articles we have on our blog and on our website about all of the unforeseen consequences of discipline on your license.

Have You Been Told the Investigation Is Not Aimed at You?  Watch Out!

Even if the investigator attempts to ensure you that the investigation is not aimed at you, watch out!  It may not be aimed at you today, but it may be aimed at you tomorrow.  Additionally, even if the particular investigation that you are being questioned about is not directed against you, there may be another investigation that has been opened against you.  Your statement can and will be sued against you in that other investigation.

I was told by a DOH investigator one time that my clients (who were a director of nursing (DON), assistant director of nursing (ADON), an administrator and a medical director) were not being investigated, but that another health professional was.  My clients cooperated and gave statements for use in the investigation of the other person.  A short time later, additional investigations were opened against all of them, too.  Fortunately we eventually had all of the charges against all of them dismissed.  But I have not trusted investigators since then.

Don’t Wait Until it is Too Late; Consult with a Health Law Attorney Experienced in Representing Health Professionals Now.

The lawyers of The Health Law Firm routinely represent nurses, ARNPs, CRNAs, physicians, dentists, pharmacists, psychologists, mental health counselors, social workers, massage therapists, medical groups, clinics, pharmacists, pharmacies, home health agencies, nursing homes, assisted living facilities, and other healthcare providers in licensing investigations, regulatory matters, in board actions and in administrative hearings.  Call now at (407) 331-6620 or (850) 439-1001 or visit our website 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.

Disclaimer: Please note that this article represents our opinions based on our many years of practice and experience in this area of health law. You may have a different opinion; you are welcome to it. This one is mine.  This article is for informational purposes only; it is not legal advice.