appeal

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

The professional boards for licensed health professionals in Florida, such as the Board of Nursing, are all under the Florida Department of Health (DOH).  Each board is responsible for disciplinary actions and other matters regulating the professions under its authority.  The investigators and attorneys assigned for Board of Nursing matters all work for or are assigned to the DOH.  The Florida DOH is headed up by the Florida Surgeon General.  I think of the DOH as the umbrella agency over the professional boards or as a parent corporation which owns many subsidiary corporations.

Administrative Procedures Governing Investigations and Disciplinary Actions.

All agency actions, especially disciplinary actions and investigations, are governed by the Florida Administrative Procedure Act (APA), Chapter 120, Florida Statutes.  The Florida APA is modeled after the Federal Administrative Procedure Act.  However, in addition to the Florida APA, DOH investigations and hearings may also be governed by several different provisions of Chapter 456, Florida Statutes, a set of laws which govern all licensed health professionals.

For example, Section 456.073, Florida Statutes, gives certain procedural steps that must be followed in investigations and probable cause hearings involving complaints against nurses and other health professionals.  Section 456.073(13), Florida Statutes, is a new section added several years ago that provides a six (6) year “statute of limitations” for many disciplinary matters;  but there are many exceptions to this.

Section 456.074, Florida Statutes, gives the Surgeon General the authority to issue emergency suspension orders (or ESOs) in certain cases.  Section 456.076, Florida Statutes, authorizes the establishment of treatment programs for impaired health professionals and offers some alternatives to disciplinary action.  To date, the only recognized programs are the Intervention Project for Nurses (IPN) (which covers all nursing professionals) and the Professionals Resource Network (PRN) (which covers almost all other health professionals).  Section 456.077, Florida Statutes, authorizes nondisciplinary citations for certain offenses.  Section 456.078, Florida Statutes, authorizes mediation for certain offenses.

Mistaken Advice Regarding Appeals.

We are often consulted by nurses after they have an emergency suspension orders (or ESOs) entered against them or after they have a Final Order for disciplinary action entered against them.  We often hear that they consulted an attorney who advised them at an earlier stage of the proceedings, after they received a letter from a DOH investigator advising that they were being investigated, to not worry about putting together or presenting any defense at that stage.  We often hear that they consulted an attorney who advised them not to dispute the charges at a formal administrative hearing or not to request a formal administrative hearing.  We are told that they have been mistakenly advised that they should just wait and file an appeal because they are more likely to win on appeal.

This is, of course, incorrect advice.  If you compare these proceedings to criminal investigations, would any competent attorney advise you to not worry about preparing for a trial or contesting the charges at a trial?  Would any competent attorney advise you to just wait until you are convicted, because you could then file an appeal?  No, of course not.  This is because appeals are based on legal defects in the proceedings and do not involve any presentation of new facts that are not already in the record.  Additionally, very few cases are reversed on appeal, whether criminal, civil or administrative in nature.  So why give up your best shots at winning a case:  presenting a good case of factual information and documents at the investigation level or disputing the charges at a formal hearing?

Don’t Try to Be Your Own Attorney on an Appellate Matter.

There are, of course, many valid legal grounds for appeals of ESOs and Final Orders.  However, you have to understand the law and the procedural rules that govern such matters in order to be able to identify them and argue them on appeal.  In addition, appellate law is a legal specialty of its own.  If you are not familiar with researching case law and writing legal briefs, you should not be attempting to appeal your own case.  Would you attempt to perform brain surgery on yourself?  If so, you should get your head examined.  The courts of appeal are far more exacting in their requirements than trial courts are.  See The Florida Rules of Appellate Procedure.  However, most Florida courts of appeal also have their own local rules which may apply to appeals.

Grounds for appeal of an ESO include that less restrictive means of protecting the public were available or that the conduct alleged does not meet the legal requirement for imposing such a suspension.  Grounds for appeal of a Final Order include that the punishment it gives exceeds the disciplinary guidelines that each board has and that proper procedures were not followed which deprived the respondent of his or her right to a fair hearing.  There are many other grounds which one who practices regularly before the Board will be able to identify and raise in an appeal.

In many cases, it would be completely useless to appeal an ESO.  You would just waste time and money by doing so, with little or no chance to win or have it reversed.  You might be far better off requesting an expedited formal hearing, to which you are entitled in an emergency suspension case, and get your case heard as soon as possible.  You need the advice and guidance of an experienced attorney to help you figure out what the best course of action is in your case.

Where to Appeal May Be an Issue.

The notice of appeal must be filed with the clerk of the DOH.  However, a copy must also be filed with the appropriate appellate court having jurisdiction.  The First District Court of Appeal in Tallahassee will have jurisdiction in almost all DOH and Agency for Health Care Administration (AHCA) appeals.  However, the District Court of Appeal which has jurisdiction over the county in which the respondent health professional resides will also have jurisdiction.  If the appellate case law of one of these is more favorable than the other, from a strategic viewpoint, it may be better to file in the one with the more favorable case law.

Alternative Actions to an Appeal May be Appropriate.

Furthermore, there may be more effective and less expensive methods of obtaining relief from an ESO or Final Order than an appeal.  If you are subject to an ESO, you have the right to an expedited hearing.  Sometimes this will result in quicker relief than appealing it.  If you are subject to a Final Order that has been issued in error or there was some mistake in the proceedings that led up to it, the Board may be inclined to reconsider the matter and amend it.  This would require you to file a motion for reconsideration with the Board itself.

Always Carry Professional Liability Insurance that Includes Licensure Defense Coverage.

We continue to recommend that all nursing personnel, especially those who work in hospitals, nursing homes or for agencies, carry your own professional liability insurance.  If you do purchase insurance, make sure it has professional license defense coverage that will pay for your legal defense in the event a complaint is filed against your nursing license.  Usually coverage of up to $25,000 comes with most good nursing liability policies.  There are many companies that sell such insurance for as little as $100 per year.  However, if you can get additional coverage, $50,000 is more likely to cover any foreseeable investigations, hearings and appeals.  Even higher limits can be purchased for a few dollars more from many insurance companies.

Seek Legal Advice and Prepare Your Defenses Early.

Always seek legal advice as soon as you suspect there may be a complaint of any kind or an investigation of any kind.  Don’t hide your head in the sand and think that the investigation could not possibly be about you.  Talk to an attorney before you talk to anyone else.  A good attorney will help to save you from making mistakes that could compromise a good legal defense.

Call the attorneys of The Health Law Firm to set up a consultation on any of the above issues. To contact The Health Law Firm please call (407) 331-6620 or (850) 439-1001 and visit our website at www.TheHealthLawFirm.com.

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

“The Health Law Firm” is a registered fictitious business name of George F. Indest III, P.A. – The Health Law Firm, a Florida professional service corporation, since 1999.
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