nurse defense legal representation

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

Florida law requires that health professionals (including physicians, nurses, physical therapists, nurse practitioners, professional counselors, and social workers, among others) obtain a Level 2 background screening before working in a facility licensed by the Agency for Health Care Administration (AHCA).  This includes third and fourth-year medical students, resident physicians, and nursing students.  Often an arrest from years ago, sometimes decades ago, will be located during this screening.  A letter stating that the individual is disqualified from employment or requiring an explanation may result.  What do you do?

Level 2 Background Screens.

A level two background screening requires your fingerprints.  It is done by checking the National Criminal Information System (NCIS) database maintained by the Federal Bureau of Investigation (FBI).  The NCIS receives reports, arrests, investigations, and criminal actions from all U.S. law enforcement agencies and the military.

It is much broader than a Level 1 background screening and covers all states and U.S. jurisdictions.

Problems and Incomplete Reports.

Although agencies that report arrests and investigations are also supposed to report the outcomes to the NCIS, they often fail to do this.  Therefore there may be incomplete information in the report that is received.  An arrest may be entered, but the dismissal or other resolution of the case may be omitted.  This will cause problems because you will have to explain what happened and produce court documents to prove it.  For example, we had a nurse-client whose Level 2 background screening came back with an arrest for a drunk and disorderly charge, in New Orleans, at Mardi Gras when she was 18 years old, over 30 years prior.  The courthouse had since been flooded during a hurricane, and all records were destroyed.

Another problem lies in military records.  Reports from The Army Criminal Investigative Division  (CID). Air Force Office of Special Investigations (OIS) and Navy Criminal Investigation Service (NCIS) are often received and entered into the system, even if the investigation concerned an administrative infraction, a minor infraction of regulations, or resulted in an Article 15 non-judicial punishment (NJP), an administrative proceeding which is not a criminal conviction.  Civilian authorities often mistakenly interpret Article 15 non-judicial punishment (NJP) as a “conviction,” but U.S. Supreme Court cases specifically state that it is not.

Certain Criminal Offenses Will Disqualify Health Professionals from Employment.

Many criminal offenses may be returned on a Level 2 background screening which initially appears to disqualify the individual from being employed in an AHCA-licensed facility, especially where the patients will be elderly, disabled, or children.  In this case, you will get a letter back from AHCA and/or your employer advising you that you are disqualified from employment, but you have thirty (30) days to provide documents to show what really happened, show the charges were dismissed, show that you have completed any sentence you received or show you have been fully rehabilitated.

We recommend that you obtain the services of an experienced health attorney in completing the forms and obtaining and producing the documents needed.  You should contact an attorney at the earliest sign that this might occur.  You will need certified copies of court documents and probation documents, as well as character reference letters.

The fact that you received prior screening when you applied for a license or before you began school is irrelevant to this process.  You will have to follow the procedure, anyway.  In the case of an actual guilty plea, a plea of nolo contendere (no contest), finding of adjudication withheld (deferred), or finding of guilty, you will have to request an exemption or a waiver from AHCA so that you may be cleared to be employed.

The Health Law Firm Attorneys have experience in Complying with AHCA Requirements and in Foiling Requests for Exemptions or Waivers.

The attorneys at The Health Law Firm have experience completing the petitions and providing the documents and explanations that AHCA requires in such matters.

Below is a copy of a decision letter from AHCA showing a successful result in such a case.

Exemptions for Employment Disqualification for Health Professionals

For more information, read our recent blog on Florida’s legislation on background checks for health professionals.

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

At the Health Law Firm, we provide legal services for all health care providers and professionals. This includes physicians, nurses, dentists, psychologists, psychiatrists, mental health counselors, home health agencies, hospitals, ambulatory surgical centers, pain management clinics, nursing homes, and other healthcare providers. It also includes medical students, resident physicians, and fellows, as well as medical school professors and clinical staff. We represent health facilities, individuals, groups, and institutions in contracts, sales, mergers, and acquisitions. The lawyers of The Health Law Firm are experienced in complex litigation and both formal and informal administrative hearings. We also represent physicians accused of wrongdoing, patient complaints, and in Department of Health investigations.

To contact The Health Law Firm, please call (407) 331-6620 and visit our website at www.ThehealthLawFirm.com.

About the Author: George F. Indest III, J.D., M.P.A., LL.M., Board Certified by The Florida Bar in Health Law is an attorney with 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.

By Michael L. Smith, R.R.T., J.D., Board Certified by The Florida Bar in Health Law

For several years, many healthcare professionals have been required to pass a Level II background check in order to work in most Florida healthcare facilities licensed by the Agency for Health Care Administration (AHCA). Many healthcare professionals are also required to pass a Level II background check in order to be licensed by the Florida Department of Health (DOH). In March 2020, the Florida Legislature passed House Bill 713, which will add the offenses of battery on a vulnerable adult and battery on a patient or resident of certain healthcare facilities (primarily nursing facilities) as a disqualifying offense. The law took effect on July 1, 2020. Previously, only felony battery and battery on a minor were disqualifying offenses for purposes of the Level II background screening.

More Details on the New Legislation.

A health professional who previously passed the Level II background check may nevertheless be deemed “not eligible” for employment in a licensed health facility on the next Level II background check. This would occur if the practitioner has been found guilty of, regardless of adjudication, or entered a plea of nolo contendere or guilty to battery of a vulnerable adult, or battery on a patient or resident of a healthcare facility. (This is the wording of the statute, not mine.)

A practitioner who is determined to be “not eligible” on a Level II background check due to a disqualifying offense must apply for an exemption from that disqualifying offense, in order to be permitted to work. The practitioner seeking an exemption has the burden of proving that the exemption should be granted. The provider must prove this with clear and convincing evidence, a standard that is higher and stricter than that in a civil trial.

Any health professional seeking an exemption from a disqualifying offense should seek the assistance of an experienced health law attorney familiar with the application process, and the types of evidence that can prove that the health professional should be granted an exemption.

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

At the Health Law Firm, we provide legal services for all health care providers and professionals. This includes physicians, nurses, dentists, psychologists, psychiatrists, mental health counselors, home health agencies, hospitals, ambulatory surgical centers, pain management clinics, nursing homes, and any other healthcare provider. It also includes medical students, resident physicians, and fellows, as well as medical school professors and clinical staff. We represent health facilities, individuals, groups, and institutions in contracts, sales, mergers, and acquisitions. The lawyers of The Health Law Firm are experienced in complex litigation and both formal and informal administrative hearings. We also represent physicians accused of wrongdoing, patient complaints, and in Department of Health investigations.

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

About the Author: Michael L. Smith, R.R.T., J.D., is Board Certified by The Florida Bar in Health Law. He is an attorney with 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.

“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.
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