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Additional Negative Consequences for Discipline on Your Professional License, Part 1 of 2

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

Do you have a medical, pharmacist, counselor, or nursing license in more than one state? Do you have a license in more than one profession? Have you been notified that an investigation has been opened against your professional license? Are you thinking about resigning your professional license or voluntarily relinquishing (giving up) your license? Then you should be aware of some important facts you may not have known.

First, you should never voluntarily relinquish or resign your professional license after you know that an investigation has been opened or that disciplinary action has been taken against you. A resignation is considered to be a “disciplinary relinquishment” and is treated the same as if your license had been revoked on disciplinary grounds.

Second, this will be reported to other states, professional agencies, the National Practitioner Data Bank (NPDB), and to any certifying bodies for certifications you have. It will also be reported to other national professional bodies (such as the National Council of State Boards of Nursing, the National Association of Boards of Pharmacy, or the American Board of Internal Medicine). Other states and other professional boards will most likely initiate disciplinary action based on the report of the first one.

Protect Your License from These Types of Adverse Actions.

Following is a list of some of the adverse actions you can expect to be taken after discipline on your license (or if you give up your license after receiving notice of investigation):

1. A mandatory report to the National Practitioner Data Base (NPDB) which remains there for 50 years. Note: The Healthcare Integrity and Protection Data Bank HIPDB have now merged into the NPDB.

2. The action must be reported to and included in the Department of Health (DOH) profile that is available to the public online (for those having one) and remains for at least ten years.

3. Any other states or jurisdictions in which the professional has a license will also initiate an investigation and possible disciplinary action against him or her in that jurisdiction. (Note: I have had two clients who had licenses in seven or more other states; even states where the license was no longer active initiated action).

4. The Office of the Inspector General (OIG) of the U.S. Department of Health and Human Services (HHS) will take action to exclude the provider from the Medicare Program. If this occurs (and many of these offenses require mandatory exclusion) the provider will be placed on the List of Excluded Individuals and Entities (LEIE) maintained by the HHS OIG.

a. Note that if this happens, you are prohibited by law from working in any position in any capacity for any individual or business, including hospitals, nursing homes, home health agencies, physicians, medical groups, insurance companies, etc., that contract with or bill Medicare or Medicaid. This means, for example, you are prohibited from working as a janitor in a nursing home that accepts Medicare or Medicaid, even as an independent contractor.

b. Also, if this happens, you are also automatically “debarred” or prohibited from participating in any capacity in any federal contracting, and you are placed on the U.S. General Services Administration’s (GSA) debarment list. This means you are prohibited by law from working in any capacity for any government contractor or anyone who takes government funding. This applies, for example, to prevent you from being a real estate agent involved in selling property financed by a government-backed loan, prohibited from working for an electrical company that bids on contracts for government housing projects, working as a school teacher in a public school, etc.

c. Additionally, if this happens, your state is required to terminate you “for cause” from the state Medicaid Program. In many states, this will also be an additional ground for revocation of your license.

5. Any profile or reporting system maintained by a national organization or federation (e.g., NURSYS profile maintained by the National Council of State Boards of Nursing, American Medical Association physician profile, or the Federation of State Board of Physical Therapy profile) will include the adverse action in it, generally available to the public.

6. If you are a nurse practitioner or other professional with clinical privileges at a hospital, nursing home, HMO, or clinic, action will be taken to revoke or suspend the clinical privileges and staff members if you have such. This may be in a hospital, ambulatory surgical center, skilled nursing facility, staff model HMO, or clinic. This will usually be for physicians, physician assistants (PAs), advanced registered nurse practitioners (ARNPs), certified registered nurse anesthetists (CRNAs), nurse midwives, or certified nurse anesthetists (CNAs), podiatrists, clinical psychologists or clinical pharmacists.

7. Third-party payors (health insurance companies, HMOs, etc.) will terminate the professional’s contract or panel membership with that organization.

8. The U.S. Drug Enforcement Administration (DEA) will act to revoke the professional’s DEA registration if he or she has one.

9. Many employers will not hire you or will terminate your employment if they discover your license has been disciplined in another state.

What Should and Shouldn’t You Do?

If you find yourself notified that you are under investigation, don’t take the easy way out by immediately relinquishing your license. Don’t hide your head in the sand by thinking the case will just go away on its own. Do not request an informal hearing or a settlement agreement in which you admit the facts alleged against you are all true. If you do this, you are “pleading guilty.” If you are innocent of the charges, request a formal hearing and contest the charges; defend yourself.

Do immediately seek the advice of an attorney who has experience in such professional licensing matters and administrative hearings. They are out there, but you may have to search for one. Do this as soon as you get notice of any investigation and especially before you have talked to or made any statement (including a written one) to any investigator.

Do purchase professional liability insurance that includes legal defense coverage for any professional license investigation against you, whether it is related to a malpractice claim or not. This insurance is cheap and will provide needed legal assistance at the time when you may be out of a job and not have money to hire an attorney. Beware of the insurance policy that only covers professional license defense if it is related to a malpractice claim.

Professional Liability Insurance.

We strongly encourage all licensed health professionals and facilities to purchase their own, independent insurance coverage. Make sure it covers professional license defense under all circumstances. Make sure you have enough coverage to actually get you through a hearing. $25,000 coverage for just professional licensure defense is the absolute minimum you should purchase; $50,000 may be adequate but $75,000 or $100,000 may be what you really need in such a situation. For a few dollars more (and I do mean only a few) you can usually purchase the higher limits.

Also, I will repeat, make sure it covers your legal defense in an administrative disciplinary proceeding against your license, even if there is no malpractice claim filed against you or likely to be filed against you.

We also recommend that you purchase coverage through an insurance company that allows you to select your own attorney and does not make you use one that the insurance company picks for you.

Companies we have encountered in the past that provide an inexpensive top quality insurance product for professional license defense costs include CPH & Associates Insurance, Nurses Service Organization (NSO) insurance, Healthcare Providers Organization (HPSO) Insurance, and Lloyd’s of London Insurance.

To learn more, visit our Video Q&A section on our website and watch our video titled, “Should I voluntarily relinquish my professional license because I am being investigated?” Additionally, click here to read one of our prior blogs for even more information on how to fight back against adverse NPBD reports.

Contact Health Law Attorneys Experienced with Investigations of Healthcare Professionals.

The attorneys of The Health Law Firm provide legal representation to medical professionals in Department of Health (DOH) investigations, licensing matters, and other types of investigations of health professionals and providers. To contact The Health Law Firm, please call (407) 331-6620 or Toll-Free at (888) 331-6620 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 Avenue, Suite 1000, Altamonte Springs, FL 32714, Phone: (407) 331-6620 or Toll-Free: (888) 331-6620.

“The Health Law Firm” is a registered fictitious business name of and a registered service mark of The Health Law Firm, P.A., a Florida professional service corporation, since 1999.
Copyright © 2022 The Health Law Firm. All rights reserved.

Are You Applying for a Nursing or Health Professional License? Read Our Helpful Tips First!

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

The process of obtaining a nursing or health professional license can be challenging and time-consuming. When seeking initial licensure or applying for a license in another state, you should be aware of delays in the application process due to the investigation of credentials and past practice, as well as the need to comply with licensing standards.

Here is a List of Examples That Would Delay Your Application:

• Disciplinary or academic actions during postgraduate training (probation, suspension, remediation)
• Action by another state’s regulatory or licensing board
• Action by a different professional licensing board
• Misdemeanor or felony convictions
• Results of the criminal background check (remember, it shows arrests, not necessarily the results of the arrests)
• Civil judgments/malpractice
• Medical, physical, mental, or chemical dependence impairment/condition within the last five years
• Adverse action against your clinical privileges by a hospital, ambulatory surgical center, skilled nursing facility, or other health facility or professional organization.
• Adverse action (e.g., termination for cause) by a former employer
• Action by a specialty board
• Lack of recent active practice
• Action by DEA against your DEA registration number
• Disciplinary action (especially court-martial) by the military
• Applications that require a petition of waiver or variance for a job

Not being 100% truthful about your history and education is the number one reason for denial of an application for a license! Don’t try to hide potentially derogatory information from a state licensing board, if it is required by the question or the instructions that further elaborate on the question. It is much better to come forward with the information and be upfront.

This being said, you do not want to volunteer adverse information that a question does not ask. For example, if a question asks about felony convictions, DO NOT disclose misdemeanor convictions or traffic ticket convictions. If a question asks about convictions, DO NOT disclose arrests for which you were acquitted or were dismissed. If a question asks about medical malpractice lawsuits, DO NOT disclose civil lawsuits that were not related to malpractice.

How to Speed up the Application Process.

There are ways to ease the process of applying for a nursing license and get your application processed quicker. Before submitting your application, contact the licensing board and request a copy of its current licensing requirements and the average time it takes to process applications.

The following are tips to help ease the process of applying for medical licensure:

1. Submit follow-up documents in a timely manner online or mail them to the correct address (as required). If you cannot obtain requested follow-up documentation, provide a separate, detailed explanation (preferably in the form of an affidavit), of why you cannot do so.

2. Keep in mind that any fees you pay have to be processed by the Department vendor. This may take a few days.

3. Identify any variation of names and nicknames.

4. Once you start the process, submit the application within 30 days so that your supplemental documents, including transcripts, will have an application file in which to be filed.

5. Have the correct address on the application for training programs you have attended and the health facilities at which you have worked.

6. Send in necessary back-up documents in a timely manner.

7. Follow up with sources that are sending the Board of Nursing your documents.

8. Watch for letters or e-mail from your reviewer. This is how you will be instructed on what additional documents or information may be needed for your application to be complete.

9. If asked for follow-up information from the Board, please read the request carefully to identify exactly what is needed to make your application complete.

10. Answer questions honestly and provide an explanation where appropriate. But do not provide information that is not being requested.

Nurses and medical professionals seeking a license should expect at least a 60-day period from the time they initially submit a completed application and the actual date licensure is granted.

For more information and ways that The Health Law Firm can help in licensure matters, visit our Video Q&A section or visit our website’s Areas of Practice page.

Contact Health Law Attorneys With Experience Handling Licensing Issues.

If you are applying for a nursing or health care license, have had a license suspended or revoked, or are facing imminent action against your license, it is imperative that you contact an experienced healthcare attorney to assist you in defending your career. Remember, your license is your livelihood, it is not recommended that you attempt to pursue these matters without the assistance of an attorney.

The Health Law Firm routinely represents nurses, physicians, dentists, medical groups, clinics, and other healthcare providers in personal and facility licensing issues.

To contact The Health Law Firm please call (407) 331-6620 or toll-free (888) 331-6620 and visit our website at www.TheHealthLawFirm.com.

Sources:

“Obtaining a Medical License.” American Medical Association (AMA). Web.

Florida Board of Nursing, “Licensing FAQs,” http://flboardofnursing.gov/licensure-faqs/

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. Suite 1000, Altamonte Springs, FL 32714, Phone: (407) 331-6620 or Toll-Free: (888) 331-6620.

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Take this Quick and Easy Quiz to See If You Might Be a “Disruptive Physician”

By George F. Indest III, J.D., M.P.A., LL.M., Board Certified by The Florida Bar in Health Law
I often have consultations with and represent physicians from across the country who are in trouble with their hospital medical staff or their licensing board because a complaint has been filed against them alleging they are a “disruptive physician.” This is often the result of an alienated member of the nursing staff or even an economic competitor trying to make trouble for or get rid of the physician.

A disruptive physician is one whose “obnoxious” behavior upsets patients or other staff members. The American Medical Association defines this in its Code of Medical Ethics as “personal conduct, whether verbal or physical, that negatively affects or that potentially may affect patient care.” This type of behavior is disfavored in hospitals and health systems because it is thought to negatively affect patient care by decreasing morale, teamwork, collaboration and communication among health professionals.

The Joint Commission Gets Involved.

Starting in 2008 the Joint Commission began urging hospitals to incorporate provisions to rein in disruptive behavior in the hospitals by physicians. The Joint Commission started requiring hospitals in 2009 to have a written code of conduct addressing the issue. This code of conduct must define acceptable, disruptive, and unacceptable behavior in the workplace, the latter two of which are usually lumped together.

Take This Quiz to See if You Are a “Disruptive Physician.”

Having represented physicians in hearings before medical staff peer review committees, resident physicians before academic conduct committees and appeal review committees, and physicians in hearings before the board of medicine, I have put together the following quiz from the types of misconduct such bodies use to denote a “disruptive physician.”

DISRUPTIVE PHYSICIAN QUIZ

Check “Yes” or “No” for each statement or question. Each “Yes” answer counts for one (1) point.

Add up all your “yes” answers above and see where you fall on the following chart:

SCORE
0 to 1 You are not a disruptive physician. You may be dead, however.
2 to 32 You may be a disruptive physician.

Although the quiz above is tongue-in-cheek, all of the questions or statements on it come from actual cases where a physician had to defend himself or herself against charges that they were a “disruptive physician.”

Legal Defenses To Disruptive Physician Charges.

Allegations against a physician for “disruptive behavior” are often vague and impossible to properly defend. It is imperative that if such charges are made against you, you obtain legal counsel who can get involved right away. Such vague, subjective allegations often are relatively easy to defend against, when the true facts are ascertained.

In the case of Fahlen v. Sutter Central Valley Hosp., 58 Cal. 4th 655 (2014), the physician’s hospital clinical privileges were terminated because of a claim of disruptive behavior. The California Supreme Court reversed the hospital’s decision and allowed the physician the right to proceed with a whistleblower case alleging substandard nursing care by the hospital’s nursing staff and the presence of risk to patient safety. In effect, the Court ruled that the doctor was merely a valid whistleblower complaining about quality of care issues. There are similar cases from other jurisdictions.

One can defend such a case by showing that the doctor’s actions are objectively reasonable under the circumstances. Other times you may have a defense you can show because an economic competitor is filing complaints or causing them to be filed against you. Sometimes complaints are generated by hospital staff as a result of a physician’s complaining about incompetent nursing staff or lack of proper equipment. In some cases, we have seen a single nurse generate enough animosity towards a physician so as to have charged with being disruptive.

Read one of my past blogs titled, “Disruptive Physicians: Nobody Likes a Nuisance” to learn more about this topic.

Contact Health Law Attorneys Experienced with Investigations of Health Professionals and Providers.

The attorneys of The Health Law Firm provide legal representation to physicians, nurses, nurse practitioners, CRNAs, dentists, pharmacists, psychologists and other health providers in accusations of disruptive behavior, Department of Health (DOH) investigations, Drug Enforcement Administration (DEA) investigations, FBI investigations, Medicare investigations, Medicaid investigations and other types of investigations of health professionals and providers.

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.

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By The Health Law Firm|2020-03-13T18:29:54-04:00March 13, 2020|Categories: Nursing Law Blog|Tags: “physician health program” and peer assistance representation, and medical staff peer review hearings, Board of Medicine defense lawyer, Board of Medicine representation, Board of Nursing representation, Board of Pharmacy representation, disruptive physician defense lawyer, disruptive physician representation, healthcare board representation, healthcare license defense, hospital, Medical Board representation, medical license defense, peer review defense attorney, physician defense lawyer, physician representation, PRN attorney, Professionals Resource Network (PRN) legal representation, representation for board matters, representation for healthcare professionals, representation for medical staff fair hearings, representation for peer review hearings, reviews of The Health Law Firm, The Health Law Firm attorney reviews|0 Comments

Florida’s New E-Prescribing Law: How It May Affect You and Your Career

By George F. Indest III, J.D., M.P.A., LL.M., Board Certified by The Florida Bar in Health Law
In 2019, Florida’s Governor Ron DeSantis signed House Bill 831 (2019), Electronic Prescribing, into law. The new bill provides important requirements for prescribers to generate and transmit all prescriptions electronically upon their license renewal or by July 1, 2021, whichever is earlier. The bill will go into effect on January 1, 2020.

Summary of New Law, HB 831.

The new law applies to any health care practitioner who is licensed by law to prescribe a medicinal drug. The law, HB 831 sets forth the following general rule for prescribing:

If you are licensed to prescribe a medicinal drug, and you:

(1) Maintain a system of electronic health records; or

(2) Are an owner, employee or contractor of a licensed healthcare facility or practice that maintains a system of electronic health records and are prescribing in your capacity as an owner, employee or contractor of the licensed healthcare facility;
then you must electronically transmit your prescriptions unless an exception applies.

How the New Law May Affect You, a Licensed Health Professional.

The law requires prescribers to generate and transmit all prescription electronically, unless:

• The practitioner and the dispenser are the same entity;

• The prescription cannot be transmitted electronically under the most recently implemented version of the National Council for Prescription Drug Programs SCRIPT Standard;

• The practitioner has been issued a waiver by the Department of Health, not to exceed one year, due to demonstrated economic hardship, technology limitations that are not reasonably within the control of the practitioner, or another exceptional circumstance demonstrated by the practitioners;

• The practitioner reasonably determines that it would be impractical for the patient in question to obtain a medicinal drug prescribed by electronic prescription promptly and such delay would adversely impact the patient’s medical condition;

• The practitioner is prescribing a drug under a research protocol;

• The prescription is for a drug for which the U.S. Food and Drug Administration (FDA) requires the prescription to contain elements that may not be included in electronic prescribing;

• The prescription is issued to an individual receiving hospice care or who is a resident of a nursing home facility; or

• The practitioner determines that it is in the best interest of the patient, or the patient determines that it is in his or her own best interest to compare prescription drug prices among area pharmacies. The practitioner must document such determination in the patient’s medical record.

About half of Florida’s medical doctors must renew their licenses by January 31, 2020. Medical doctors that renew their licenses between January 1, 2020, and January 31, 2020, must comply with the new law by the date they renew their licenses.

View the full text of HB 831 – Electronic Prescribing here.

For more information, including a list of frequently asked questions, visit the Florida Board of Medicine’s website.

Contact Health Law Attorneys Experienced in the Representation of Health Professionals and Providers.

The attorneys of The Health Law Firm provide legal representation to physicians, nurses, nurse practitioners, CRNAs, pain management doctors, dentists, pharmacists, psychologists and other health providers in Department of Health (DOH) investigations, Drug Enforcement Administration (DEA) investigations, FBI investigations, Medicare investigations, Medicaid investigations and other types of investigations of health professionals and providers.

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

Sources:

“ALERT: Electronic Prescribing Requirements.” Florida Board of Medicine. (October 21, 2019). Web.

Scott, Jeff. “What Florida’s new e-prescribing law means for you.” Florida Medical Association (FMA). (June 18, 2019). Web.

About the Authors: 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.
Michael L. Smith, R.R.T., J.D., is Board Certified by The Florida Bar in Health Law
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

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By The Health Law Firm|2019-12-05T19:34:15-05:00December 9, 2019|Categories: Health Facilities Law Blog|Tags: Board of Dentistry attorney, Board of Dentistry representation, Board of Medicine attorney, Board of Medicine defense attorney, Board of Medicine representation, Board of Nursing attorney, Board of Nursing investigation representation, Board of Nursing representation, board of pharmacy attorney, Board of Pharmacy investigation representation, Board of Pharmacy representation, DEA hearing defense attorney, DEA hearing representation, DEA investigation attorney, DEA investigation representation, dentist defense lawyer, health care professional defense attorney, license renewal defense lawyer, license renewal representation, licensure defense attorney, nurse attorney, nurse defense attorney, pharmacy defense lawyer, physician attorney, professional licensure defense attorney, professional licensure representation, representation for Board of Medicine complaints, representation for Board of Medicine investigations, representation for dentists, representation for e-prescribing, representation for health care professionals, representation for licensure issues, representation for nurses, representation for pharmacies, representation for pharmacists, review of The Health Law Firm, The Health Law Firm attorney reviews|0 Comments

FL May Allow Providers to Avoid Past Mental-Health Conditions, Drug Issues on License Applications

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

Health care professionals ask patients about their medical histories every day for in treating them. But what happens when they are requested to divulge in their own history to the state as part of the licensing process? Before being licensed in the state of Florida, for example, health care providers are required to disclose if they have been treated for mental-health or substance-abuse disorders within in the past five years. However, this could be changing very soon.

Changes to Past Health Questions.

In December 2018, a committee of the Florida Board of Medicine gave preliminary approval to eliminate questions about past treatment of mental health and substance abuse from applications for medical licenses in Florida. Rather, applicants would be asked only whether they currently have any condition that impairs them from safely practicing.

Medical history questions are asked during the initial application for license, whether the applicant is a new physician or a physician from another state who is seeking a Florida license. This is true for most states. The new questions are designed to be more open-ended and lend themselves to subjective answers.

The proposal to change the initial application questions comes after several studies revealed an alarming suicide rate among physicians and medical students. According to a 2015 study published in the journal JAMA Psychiatry, between 300 and 400 physicians commit suicide each year.

Despite these numbers, the proposal still requires full board approval and faces opposition from some board members.

Click here to read one of my prior blogs about rising baker acts among college students in Florida.

Contact Health Law Attorneys Experienced in Representing Health Professionals and Providers.

The attorneys of The Health Law Firm provide legal representation to physicians, physician assistants, nurses, nurse practitioners, cardiologists, CRNAs, pain management doctors, dentists, pharmacists, psychologists and other health providers in Department of Health (DOH) investigations, Drug Enforcement Administration (DEA) investigations, FBI investigations, Medicare investigations, Medicaid investigations and other types of investigations of health professionals and providers.

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

Sources:

Sexton, Christine. “Florida doctors may avoid revealing past mental-health and drug-abuse issues.” Orlando Sentinel. (January 16, 2019). Web.

“Change Seeks To Remove ‘Stigma’ For Doctors.” Health News Florida. (January 16, 2019). Web.

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.

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How Can I Tell Whether or Not My Attorney Knows Anything about Florida Board of Nursing or Disciplinary Cases?

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

Hiring an attorney can be intimidating and costly. However, hiring representation for a Florida Board of Nursing or disciplinary case is an investment in your future and career. An experienced attorney is indispensable for preparing and defending your case. But how do you know if your representation is knowledgeable in health law?

Below are some examples of what an experienced attorney will not say to a nurse about his or her Board of Nursing or disciplinary case. Remember, if you hear any of the advice below, the attorney most likely has limited or no experience in this area of legal practice.

1. Your attorney tells you that you can argue your case to the Board of Nursing.

Reason:

You cannot “argue your case” in front of the Board of Nursing. If you are at a hearing before the Board of Nursing, it is because you have requested an “informal hearing.”

If you have requested an “informal hearing” this means you do not dispute any of the facts alleged against you in the Department of Health (DOH) complaint. If you are not disputing the facts, this means you are agreeing that you are guilty. If you are at a hearing in front of the Board of Nursing, you will not be allowed to argue that you are not guilty, and you will not be allowed to call any witnesses or introduce any documents. You are only there for the purpose of determining how much punishment the Board will give you and this is based on guidelines that the Board has previously enacted.

2. If your attorney tells you that he or she does not intend to submit any information or documents for consideration by the Probable Cause Panel (PCP) of the Board of Nursing.

Reason:

Many cases are dismissed by the Probable Cause Panel (PCP) and this is the easiest, most expedient, and least expensive way of winning your case. However, your presentation (written only) that is submitted to the PCP must be direct, concise, directly address the legal issues, and be well organized. It is not advisable to try to prepare this yourself. We often include affidavits from our own expert witnesses that have reviewed the case. If the PCP does not vote in favor of probable cause, the case is dismissed and closed. It is like it never happened. There is no record kept of the initial complaint.

The PCP of the Board of Nursing consists of between two and four members. Some of these can be laypersons with no experience in your area of healthcare. A majority has to vote and decide that there is probable cause. Therefore, if there are only two members, and you convince one that you did not do it, then there is no probable cause.

In my opinion, this is the best and quickest way to win your case, but you must know what you are doing. There are exceptions to every rule.

3. If your attorney tells you to meet with the DOH investigator or to give a statement (written or oral) to the investigator, especially without being present or preparing you.

Reason:

DOH investigators are similar to police. If you give them any statement, this can be used to prove the case against you. In most cases, you never want to do this. Although there may be a rare exception, we strongly advise the client against this in about 99% of the cases we handle.

Even if you believe that you are totally innocent, your former employer, the unhappy patient who reported you, or the DOH prosecuting attorney may be convinced that you are not innocent and recommend that charges are prosecuted against you. Exhibit 1 used against you at a hearing will be your own statement. The first witness the DOH prosecutor will call to testify will be you.

Be smart in such matters. Don’t think you can just explain the case away. Don’t give evidence that can be used against you. It is not required under Florida law, and you cannot be compelled to do this.

4. If your attorney says you should call and negotiate with the DOH attorney, or PRN/IPN case manager.

Reason:

As discussed above, anything you say can and will be used against you. This is one of the main reasons you should retain an experienced attorney: to act as a buffer between you and the legal system, to protect you, and shield you from mistakes you make that could hurt your defense.

Additionally, if your attorney is not much more familiar with the DOH and the PRN/IPN procedures than you are, then why have you hired him or her?

5. If your attorney tells you not to worry about the hearing, you can later appeal.

Reason:

Only about 20% of cases are won on appeal. On appeal, the Court of Appeal is limited to the record of the hearing that was held. You are not allowed to reargue the facts in an appeal. You are limited to arguing about legal errors that were made during the hearing. If you don’t know the law, you are unable to effectively appeal.

6. If your attorney tells you that he or she can represent you during the investigation but is unable to “try” your case at an administrative hearing.

Reason:

Representation only through the PCP hearing stage simply is not enough. An attorney should have sufficient knowledge, experience, and skill to represent you throughout the entire case. If he or she does not, and formal administrative charges are recommended by the PCP, you will then need to retain a completely new attorney who will need time, effort, and legal fees to learn your case in order to properly represent you.

Additionally only an attorney who has experience in litigation cases against the DOH and your professional board will have the credibility and experience to negotiate the most favorable deal for you if you later desire to settle the case.

Consult With An Experienced Health Law Attorney.

We routinely provide deposition coverage to registered nurses (RNs), advanced registered nurse practitioners (ARNPs), certified registered nurse anesthetists (CRNAs), licensed practical nurses (LPNs), nurse midwives and nurse practitioners and other health professionals being deposed in criminal cases, negligence cases, civil cases or disciplinary cases.

The lawyers of The Health Law Firm are experienced in both formal and informal administrative hearings and in representing registered nurses (RNs), advanced registered nurse practitioners (ARNPs), certified registered nurse anesthetists (CRNAs), licensed practical nurses (LPNs), nurse midwives and nurse practitioners in investigations at Board of Nursing hearings. Call now 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.

“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 © 1996-2014 The Health Law Firm. All rights reserved.

Drug Enforcement Administration (DEA) Agents May Surprise You at Florida Board of Nursing Meeting

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

At several recent Florida Board meetings, after hearings at which disciplinary cases were considered by the Board, Drug Enforcement Administration (DEA) agents approached the health professional. Even in instances where the nurse was represented by an attorney and the attorney was there, the DEA agents confronted the professional involved.

What Were the DEA Agents Trying to Do?

In the cases where The Health Law Firm’s attorneys were there representing clients, the professional received some type of discipline on his or her license. Some of these were Settlement Agreements. The DEA Agent approached the professional and urged the professional to sign a voluntary relinquishment of DEA registration.

It seems that this is happening to professionals where there is some type of serious or long-term discipline is being taken against their licenses, such as long-term probation, suspension or revocation. Also, if the charges against the health professional involved, drugs, over-prescribing, abuse of narcotics, operation of a “pill mill,” selling or illegally dispensing or prescribing narcotics, drug diversion or abuse, being impaired from use of drugs, and other similar misconduct. These are often grounds for the revocation, suspension or revocation of the DEA number.

This action by DEA agents has occurred at Board of Medicine meetings and hearings, Board of Osteopathic Medicine meetings and hearings, Board of Dentistry meetings and hearing and Board of Pharmacy meetings and hearings. If you are a professional who has a DEA registration and number, you are, apparently, fair game.

Don’t Be Surprised; Be Prepared and Don’t Make a Rash Decision.

It is unusual to see federal agents of this type “cruising” state professional board meetings like we have seen lately. But, it seems to make sense, from the DEA’s point of view. If you can take several minutes and convince, surprise or intimidate a health professional into relinquishing his or her DEA registration voluntarily, then you may save the government hundreds of hours of time and thousands of dollars in expenses in having to investigate and have a separate administrative hearing (which the health professional may win), if he or she voluntarily relinquishes the DEA registration.

Immediately consult with an experienced health law attorney who has dealt with the DEA before.

Remember Your Rights; Yes, You Have Rights!

Yes, you do have rights, Constitutional rights. Use them! That is what they are there for.

You have the right to consult with counsel before making a decision. Don’t believe it if a DEA agents tells you that you don’t.

You have the right not to sign any forms or make any statements. Don’t sign anything. Don’t make any statements except for getting the agent’s card and telling them you will have your attorney contact them.

You have the right to take time to consider the matter and consult with others. You do not have to make a decision right away.

The Consequences of Voluntary Relinquishment are Serious and Long-Lasting.

Your voluntary relinquishment are serious and long lasting. It will be treated the same as a revocation of your DEA number. We have consulted with physicians and pharmacists who have never been able to get it back after they relinquished it.

You will probably be terminated from any health insurance panels you are on if this happens.

You will probably have action taken against your clinical privileges if you have clinical privileges at any hospital, nursing home or ambulatory surgical center (ASC).

You may be terminated from the Medicare or Medicaid Program.

There are many other consequences that may result.

Therefore, you and your attorney should be aware that this may happen and you and your attorney should be prepared if it does happen.

For more tips on how to prepare, click here to read my prior blog.

Don’t Wait Too Late; Consult with an Experienced Health Law Attorney Early.

Do not wait until action has been taken against you to consult with an experienced attorney in these matters. Few cases are won on appeal. It is much easier to win your case when there is proper time to prepare and you have requested a formal hearing so that you may actually dispute the facts being alleged against you.

The lawyers of The Health Law Firm are experienced in both formal and informal administrative hearings and in representing nurses, nurse practitioners, and CRNAs in investigations and at Board of Nursing hearings. Call now 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.

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By The Health Law Firm|2018-02-07T02:27:20-05:00May 15, 2018|Categories: Nursing Law Blog|Tags: administrative complaint defense attorney, administrative hearing attorney, Board of Nursing attorney, Board of Nursing defense attorney, Board of Nursing representation, DEA hearing defense attoreny, DEA hearing representation, DEA investigation attorney, DEA investigation representation, health care professional defense attorney, licensure defense attorney, nurse attorney, Nurse Practitioner attorney, professional licensure defense attorney, professional licensure representation, representation for administrative hearings, representation for Board of Nursing complaints, representation for Board of Nursing investigations, representation for health care professionals, representation for licensure issues, review of The Health Law Firm, The Health Law Firm attorney reviews|0 Comments