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The Collateral Effects of a Criminal Case on a Health Care Licensee

Criminal charges against a health care professional can have serious consequences. Learn more about the impact of a criminal charge on Florida licensed health professionals. For further information, visit our website.

What is the Effect of a Plea of Nolo Contendere for a Florida Licensed Health Professional?

Pursuant to the general chapter of Florida Statutes applicable to all licensed health professionals (Chapter 456), a plea of nolo contendere is treated the same as a plea of guilty for all purposes.  Additionally the chapter of Florida Statutes that governs each type of health professional usually contains similar provisions;  sometimes this will be in the Florida Administrative Code (F.A.C.) Rules that have been adopted by the separate professional licensing board for that profession.

What Is the Effect of an Adjudication or Finding of Adjudication Withheld?

Pursuant to the general chapter of Florida Statutes applicable to all licensed health professionals (Chapter 456), an adjudication or finding of adjudication withheld (or “adjudication deferred” in some jurisdictions) is treated the same as a finding of guilty for all purposes.  Additionally the chapter of Florida Statutes that governs each type of health professional usually contains similar provisions;  sometimes this will be in the Florida Administrative Code (F.A.C.) Rules that have been adopted by the separate professional licensing board for that profession.

When must a Licensed Health Professional Report Guilty Pleas (Nolo Plea or Guilty Plea) and Convictions (Adjudication Withheld or Finding of Guilty) to the Florida Department of Health?

Any guilty plea (as defined above as a nolo plea or guilty plea) or any adjudication of guilt (as defined above as adjudication withheld or finding of guilty) of any crime must be reported  by the health professional to his or her professional licensing board (or the Department of Health when there is no board) within thirty (30) days of the conviction or finding.  Section 456.072(1)(x), Florida Statutes.

In Florida, all health professionals licensed or regulated under Chapter 456 of Florida Statutes, are required to report to their professional board (or the Florida Department of Health if there is no professional board in their profession) any convictions or findings of guilty of criminal offenses, in any jurisdiction.  Unfortunately, pursuant to Florida Statutes, a plea of nolo contendere must be reported just as a plea of guilty to an offense (a plea of not guilty does not need to be reported).  A finding of guilty or a finding of adjudication withheld (also called a “withhold” or “deferred adjudication” in some jurisdictions) must also be reported (a finding of not guilty, a dismissal, a nolle prosequi, pretrial diversion or pretrial intervention program in almost all cases dose not have to be reported).

Licensed practitioners who also are required to have a profile with the Department of Health (e.g., physicians licensed under Chapters 458, 459, 460 or 461), must submit an update to their profile, including criminal convictions, within fifteen (15) days of the “final activity that renders such information a fact.”  Section 456.042, Florida Statutes.

For example, a doctor of medicine (M.D.), licensed pursuant to chapter 458, Florida Statutes, must submit an update to the physician’s profile within fifteen (15) days.  A registered respiratory therapist, on the other hand, doesn’t have a profile.  The registered respiratory therapist would have to report  a matter qualifying with the above within thirty (30) days to his or her board, the Board of Respiratory Care.  (A finding of not guilty, a dismissal, a nolle prosequi, pretrial diversion or pretrial intervention program in almost all cases dose not have to be reported).

As with any such important legal matter, we recommend reporting in a typed, professional letter, via a reliable method of delivery which provides tracking and delivers you a receipt.  We do not consider e-mail to be reliable or susceptible of verification or tracking.  We usually recommend reporting such matters via U.S. Express Mail, with a return receipt requested.  Be sure to keep copies of the correspondence, the receipt of mailing and the return receipt, to document reporting and delivery dates, and to prove receipt.

Always consult the latest versions of the Florida Statutes and the Rules of the Department of Health and your professional board to make sure you have the correct information.  We recommend retaining a health attorney familiar with the Department of Health and its regulatory processes, as such a report will usually require the Department of Health to commence an investigation of the health professional, even if the health professional is located in another state.

Which Crimes May Result in an Automatic Bar to Licensure?

Senate Bill 1984, effective July 1, 2009, amended various section of Florida Statutes, including sections of Chapter 456.  These amendments prohibit the Department of Health from granting a new license to or granting the renewal of a license to a health professional because of a guilty plea or conviction of certain offenses.  This is also grounds for revocation of the health professional’s license.

Generally, as set forth in Section 456.0635(2)(a), Florida Statutes these are:

Being convicted of, or entering a plea of guilty or nolo contendere to, regardless of adjudication, a felony under:

    • Chapter 409 (the Medicaid Program)
    • Chapter 817 (Fraud)
    • Chapter 893 (Drugs)
    • 21 U.S.C. Sects. 801-970 (Food and Drugs);  or
    • 42 U.S.C. Sects. 1395-1396 (Medicare, Medicaid, and Social Security)

unless the sentence and any subsequent period of probation for such conviction or pleas ended more than 15 years prior to the date of the application.  (Sect. 456.0635(2)(a), Fla. Stat.)

Additionally, grounds for discipline against the existing license of health professional includes:

    • Any misdemeanor or felony relating to Medicaid fraud:  “Being convicted of, or entering a plea of guilty or nolo contendere to, any misdemeanor or felony, regardless of adjudication, under 18 U.S.C. Sect. 669, Sects. 285-287, Sect. 371, Sect. 1001, Sect. 1035, Sect. 1341, Sect. 1343, Sect. 1347, Sect. 1349, or Sect. 1518, or 42 U.S.C. Sects. 1320a-7b, relating to the Medicaid program.”  (Sect. 456.072(1)(ii), Fla. Stat.
    • Being convicted of, or entering a plea of guilty or nolo contendere to, any misdemeanor or felony, regardless of adjudication, a crime in any jurisdiction which relates to health care fraud.  (Sect. 456.072(1)(ll), Fla. Stat.

Defense Strategies and Avoidances

    • Plead to some offense or offenses other than the ones listed above.
    • Avoid a felony conviction;  misdemeanors do not prohibit licensure or renewal, but may result in disciplinary action.
    • Avoid any offenses that sound like “health fraud,” “Medicaid fraud” or “Medicare fraud.”
    • Violations of other states’ laws don’t count;  just Florida’s and federal listed above (caveat).
    • Attempt to obtain pre-trial diversion, pre-trial intervention or drug court.
    • Attempt to avoid having to enter a guilty plea or nolo plea.
    • Attempt to include in settlement agreement/plea bargain agreement/stipulation that client may apply to have record sealed immediately upon completion of requirements and State will not object.
    • Advise client to immediately apply for sealing of record when all requirements of probation are met.
    • Obtain input from a board certified health lawyer or other “expert” as to the disproportionate effect (all of the collateral consequences) that a “conviction” may have on the licensed health professional.

What Are the Collateral Effects of “Conviction” of above Offenses?

  1. A case involving an arrest or a conviction involving alcohol abuse (DUI/public Intoxication) or drugs (possession, diversion, theft, trafficking) will probably result in an emergency suspension order (ESO) until entire licensure case is complete.
  2. Client may be required to be evaluated and probably enrolled in the Impaired Nurses Program (IPN) (for nurses only) or the Professionals Resource Network (PRN) (for all other licensed health professionals), which is usually at least a five year contract.
  3. Action to revoke, suspend or take other action against the clinical privileges and medical staff membership of those licensed health professionals who may have such in a hospital, ambulatory surgical center, skilled nursing facility, or staff model HMO or clinic.  This will usually be physicians, physician assistants (PAs), advance registered nurse practitioners (ARNPs), certified registered nurse anesthetists (CRNAs), podiatrists, clinical psychologists and clinical pharmacists.
  4. Mandatory report to the National Practitioner Data Base (NPDB) (Note:  Healthcare Integrity and Protection Data Bank or HIPDB recently folded into NPDB) which remains there for 50 years.
  5. Must be reported to and included in the DOH profile that is available to the public online (for those having one), and remains for at least ten years.
  6. Any other states or jurisdictions in which the client has a license will also initiate action against him or her in that jurisdiction.  (Note:  I have had two clients who had licenses in seven other states).
  7. The OIG of HHS will take action to exclude the provider from the Medicare Program.  If this occurs (and most of these offense require mandatory exclusion) the provider will be placed on the List of Excluded Individuals and Entities (LEIE) maintained by the HHS OIG.
  8. If the above occurs, the provider is also automatically “debarred” or prohibited from participating in any capacity in any federal contracting and is placed on the U.S. General Services Administration’s (GSA’s) debarment list.
  9. The U.S. Drug Enforcement Administration (DEA) will act to revoke the professional’s DEA registration if he or she has one.
  10. The certified health professional’s certify organization will act to revoke his or her certification.
  11. Third party payors (health insurance companies, HMOs, etc.) will terminate the professional’s contract or panel membership with that organization.
  12. Any profile maintained by a national organization or federation (e.g., American Medical Association physician profile or Federation of State Boards of Physical Therapy profile) will include the conviction.
  13. Regardless of any of the above, any facility licensed by AHCA (hospitals, skilled nursing facilities (SNFs), public health clinics, public health clinics, group homes for the developmentally disabled, etc.) that are required to perform background screenings on their employees will result in AHCA notifying the facility and the professional that he or she is disqualified from employment.

The 25 Biggest Mistakes Nurses Make After Being Notified of a Department of Health Complaint

By Lance Leider, J.D.

The investigation of a complaint which could lead to the revocation of a nurse’s license to practice and the assessment of tens of thousands of dollars in fines, usually starts with a simple letter from the Department of Health (DOH). This is a very serious legal matter, and it should be treated as such by the nurse who receives it. Yet, in many cases, attorneys are consulted by nurses after the entire investigation is over, and they have attempted to represent themselves throughout the case. Often, the mistakes that have been made severely compromise an attorney’s ability to achieve a favorable result for the nurse.

These are the 25 biggest mistakes we see in the nursing cases we are called upon to defend after a DOH investigation has been initiated:

1. Failing to keep a current, valid address on file with the DOH (as required by law), which may seriously delay the receipt of the Uniform Complaint (notice of investigation), letters, and other important correspondence related to the investigation.

2. Contacting the DOH investigator and providing him/her an oral statement or oral interview. (Note: There is no legal requirement to do this.)

3. Making a written statement in response to the “invitation” extended by the DOH investigator to do so. (Note: There is no legal requirement to do this.)

4. Failing to carefully review the complaint to make sure it has been sent to the correct nurse. (Note: Check name and license number).

5. Failing to ascertain whether or not the investigation is on the “Fast Track” which may then result in an emergency suspension order (ESO) suspending the nurse’s license until all proceedings are concluded. (Note: This will usually be the case if there are allegations regarding drug abuse, alcohol abuse, sexual contact with a patient, mental health issues, or failure to comply with PRN instructions.)

6. Providing a copy of the nurse’s curriculum vitae (CV) or resume to the investigator because the investigator requested them to do so. (Note: There is no legal requirement to do this.)

7. Believing that if they “just explain it,” the investigation will be closed and the case dropped.

8. Failing to submit a timely objection to a DOH subpoena when there are valid grounds to do so.

9. Failing to forward a complete copy of the patient medical record when subpoenaed by the DOH investigator as part of the investigation, when no objection is going to be filed.

10. Delegating the task of providing a complete copy of the patient medical record to office staff, resulting in an incomplete or partial copy being provided.

11. Failing to keep an exact copy of any medical records, documents, letters or statements provided to the investigator.

12. Believing that the investigator has knowledge or experience in hospital procedures, medical procedures or the health care matters or procedures being investigated.

13. Believing that the investigator is merely attempting to ascertain the truth of the matter and this will result in the matter being dismissed.

14. Failing to check to see if their medical malpractice insurance carrier will pay the legal fees to defend them in this investigation.

15. Talking to DOH investigators, staff or attorneys, in the mistaken belief that they are capable of doing so without providing information that can and will be used against them.

16. Believing that because they haven’t heard anything for six months or more the matter has “gone away.” The matter does not ever just go away.

17. Failing to submit a written request to the investigator at the beginning of the investigation for a copy of the complete investigation report and file and then following up with additional requests until it is received.

18. Failing to wisely use the time while the investigation is proceeding to interview witnesses, obtain witness statements, conduct research, obtain experts, and perform other tasks that may assist defending the case.

19. Failing to exercise the right of submitting documents, statements, and expert opinions to rebut the findings made in the investigation report before the case is submitted to the Probable Cause Panel of your licensing board for a decision.

20. Taking legal advice from their colleagues regarding what they should do (or not do) in defending themselves in the investigation.

21. Retaining “consultants” or other non-lawyer personnel to represent them.

22. Believing that the case is indefensible so there is no reason to even try to have it dismissed by the Probable Cause Panel.

23. Attempting to defend themselves.

24. Believing that because they know someone with the Department of Health or a state legislator, that influence can be exerted to have the case dismissed.

25. Failing to immediately retain the services of a health care attorney who is experienced in such matters to represent them, to communicate with the DOH investigator for them, and to prepare and submit materials to the Probable Cause Panel.

Bonus Point: 26. Communicating with the Department of Health about the pending case.

Not every case will require submission of materials to the Probable Cause Panel after the investigation is received and reviewed. There will be a few where the allegations made are not “legally sufficient” and do not constitute an offense for which the nurse may be disciplined.

In other cases, an experienced health care attorney may be successful in obtaining a commitment from the DOH attorney to recommend a dismissal to the Probable Cause Panel. In other cases (usually the most serious ones), for tactical reasons, the experienced health care attorney may recommend that you waive your right to have the case submitted to the Probable Cause Panel and that you proceed directly to an administrative hearing. The key to a successful outcome in all of these cases is to obtain the assistance of a health care lawyer who is experienced in appearing before the Board of Medicine in such cases and does so on a regular basis.

Contact Health Law Attorneys Experienced with Department of Health Investigations of Nurses.  

The attorneys of The Health Law Firm provide legal representation to nurses and nurse practitioners in Department of Health (DOH) investigations, Drug Enforcement Administration (DEA) investigations, FBI 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: Lance O. Leider, J.D. 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., Altamonte Springs, FL 32714, Phone: (407) 331-6620.

The Collateral Effects of Discipline on Your Nursing License

indest1By George F. Indest, J.D., M.P.A., LL.M., Board Certified by The Florida Bar in Health Law

A. A case involving an arrest or a conviction involving alcohol abuse (DUI/public Intoxication) or drugs (possession, diversion, theft, trafficking) will probably result in an emergency suspension order (ESO) until the entire licensure case is complete.

B. Client may be required to be evaluated and probably enrolled in the Impaired Nurses Program (IPN) (for nurses only) or the Professionals Resource Network (PRN) (for all other licensed health professionals), which is usually at least a five year contract.

C. Action to revoke, suspend or take other action against the clinical privileges and medical staff membership of those licensed health professionals who may have such in a hospital, ambulatory surgical center, skilled nursing facility, or staff model HMO or clinic. This will usually be advance registered nurse practitioners (ARNPs) and certified registered nurse anesthetists.

D. Mandatory report to the National Practitioner Data Base (NPDB) (Note: Healthcare Integrity and Protection Data Bank or HIPDB recently folded into NPDB) which remains there for 50 years.

E. 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 10 years.

F. Any other states or jurisdictions in which the client has a license will also initiate action against him or her in that jurisdiction. (Note: I have had two clients who had licenses in seven other states).

G. The Office of Inspector General (OIG) of Department of Health and Human Services (HHS) will take action to exclude the provider from the Medicare Program. If this occurs (and most 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.

H. If the above occurs, the provider is also automatically “debarred” or prohibited from participating in any capacity in any federal contracting and is placed on the U.S. General Services Administration’s (GSA’s) debarment list.

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

J. The certified health professional’s certify organization will act to revoke his or her certification.

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

L. Any profile maintained by a national organization or federation (e.g., American Medical Association physician profile or Federation of State Boards of Physical Therapy profile) will include the conviction.

M. Regardless of any of the above, any facility licensed by AHCA (hospitals, skilled nursing facilities (SNFs), public health clinics, public health clinics, group homes for the developmentally disabled, etc.) that are required to perform background screenings on their employees will result in AHCA notifying the facility and the professional that he or she is disqualified from employment.
Contact Health Law Attorneys Experienced in Representing Nurses.

The Health Law Firm’s attorneys routinely represent nurses in Department of Health Investigations, before the Board of Nursing, in appearances before the Board of Nursing in licensing matters, and in administrative hearings.

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.

“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.

Nurse: Please Talk to an Attorney Before You Talk to an Investigator

By Lance Leider, J.D.

In Florida, You DO NOT Have to Speak to an Investigator!

Despite mailing out hundreds of thousands of postcards and letters to nurses throughout Florida, we continue to receive calls from new clients and from potential clients, after they have already spoken to and made critical harmful admissions against their own interests to investigators. In Florida, you do not have any duty to cooperate with any investigator who is investigating you. This extends to Department of Health (DOH) investigators (who are sometimes titled “Medical Quality Assurance Investigators” or “Medical Malpractice Investigators”), Drug Enforcement Administration (DEA) special agents, police officers, sheriff’s deputies, or criminal investigators of any type.

Nurses, Investigators are NOT on Your Side.

Let me state this as succinctly and clearly as possible. If you are being investigated, you will not be better off making a statement. You will not be better off explaining your side of the story. The investigator is not your friend. The investigator is not on your side. All you are doing is falling for a trick and helping the government to make a case against you.

Protecting Yourself and Your License.

You have a right under the U.S. Constitution to not make any statement that may be used against you. This is so important that in criminal cases government investigators are required to advise you of this by reciting to you your Miranda rights.

However, in cases where you might have your nursing license revoked the investigator is not required to advise you of your rights.

In a criminal case, there may be ways to have your statement thrown out. However, in a professional licensing case or other administrative case, it may be too late to avoid the damage. You may be the best witness the government has and you may be the only witness the government needs to prove ths case against you.

In the case where you could receive a $100 criminal fine, the investigators are required to read you your constitutional Miranda rights and to be sure that you understand them before you make a statement. However, in a case where you can lose your professional license, where you could lose your livelihood and ability to make a living, where you could lose everything you have worked so hard to obtain, they are not required to do this. You must protect yourself.

Many health professionals, when confronted by an investigator, who will usually call at a very inconvenient time (to catch you by surprise) and will usually flash a badge (to intimidate you), will refuse to acknowledge the seriousness of the matter and will fall for the bait to “tell their side of the story.” This can be fatal to your defense and fatal to your license.

Do NOT Admit to Anything; What You Say May Ruin Your Defense.

In the absence of a statement by the suspect (in this case, let’s assume this is YOU), the government may have a very difficult time of proving that you have committed any offense. It may have other witnesses (who may not be around at the time of any hearing or trial). It may have a lot of physical evidence or documents. But it may be impossible for the government investigators to make any link between you and the evidence, unless you help the investigators do this. You would be surprised at how many nurses believe that they can just talk their way out of the situation; in reality, they are just giving evidence that is used to make the case against them.

Any evidence at all, just admitting that you were there, admitting that the documents are yours, admitting that the patient was yours, admitting that you worked at the clinic, admitting that you wrote the prescription, admitting that the property is yours, admitting that you were on duty at the time, admitting that you have taken a drug, admitting that you signed the form, can be a crucial piece of evidence that could not otherwise be proven without your own testimony.

Remember, this is the investigators’ job and profession. This is what they do full time, every day. And they are very good at it. They are 1,000 times better at getting you to admit the crucial elements of a disciplinary infraction than you are in “talking your way out of it.” They will not be convinced by any excuses you make. They do not have to be. They will not be the ones making the final decision against you. Theirs is the job of putting together the case against you. You will help them by talking to them, explaining why your decisions are correct, explaining why what you did is excusable, etc. It will not work. You will merely be giving them enough rope to hang you with.

Determining the Purpose of the Investigation.

Hint: If it is an “auditor,” “surveyor” or “investigator” from an agency or company with “integrity” or “program integrity” in its name, they are probably investigating you for “lack of integrity,” i.e., false claims or fraud.

Hint: If it is a Drug Enforcement Administration (DEA) special agent (investigator) they are probably investigating you to prosecute you or to revoke your DEA registration for drug or prescribing violations.

Hint: If it is a Department of Health Quality Assurance Investigator or Medical Malpractice Investigator, they are probably only investigating possible disciplinary action against your license that could result in large administrative fines or revocation of your license.

Do Not Try to Talk Your Way Out; You Cannot Outsmart the Investigator.

Do not believe for a second that you are smarter than the investigator. Do not believe for a second that you will convince the investigator (or anyone else) that there is a legal or medical justification for what you did or what they allege. If it were as simple as that, then why would there be an investigation and why would you be the one being investigated?

Additionally, do not believe for a second that you can lie your way out of it, either. Remember, if the government cannot prove the basic offense that it is investigating against you, it may be able to prove that you have committed perjury or lied to an investigator. In the case of a federal official or a federal investigation, merely making a false statement (oral or written) to an investigator is a criminal act. This is what Martha Stewart and many others have served time for in federal prisons.

These investigators are lied to all the time. They are usually better at detecting lies than a polygraph expert is. Furthermore, in most cases, you will be the very last person to be interviewed. Therefore, they will already know just about everything that can be used against you. If your statement contradicts in any way what others have told them, they will know you are the one who is lying. However, knowing something or suspecting something does not mean it will be something that can be proven in court or in an administrative hearing.

Before Saying ANYTHING Be Sure to Consult an Attorney.

It is much better to make no statement at all. Blame it on your attorney. Tell the investigator that your attorney will kill you if you were to talk to the investigator without your attorney being there ahead of time. “Speak to my attorney.” “My attorney can help you, I can’t.”

All you have to do is state “I must talk to my lawyer before I say anything.” “I will have my lawyer contact you.” “I cannot say anything until I talk to my lawyer.” “I want a lawyer.”

If you are not the one being investigated, then there is no good reason why the investigator would want you to make a statement before you consulted with your attorney. What is the rush?

Then you must also avoid the old trick of the investigator telling you “If you don’t have anything to hide, why would you need a lawyer?” Please don’t fall for this trick, either. This is America. Smart people and rich people spend a lot of money on attorneys and other professionals to represent them and advise them. There is a good reason why they do this.

Far too often the nurse only calls us after he has given a statement. This is usually too late to avoid much of the damage that will have been be caused.

Everything above applies to oral statements or written statements. Do not make either. Contact a lawyer as soon as possible, preferably before making any statement, no matter how simple, defensive, self-serving or innocuous you may think it to be.

Think of this as an intelligence test. Are you smart enough to follow this guidance and avoid this type of mistake?

Contact Health Law Attorneys Experienced with Investigations of Nurses.

The attorneys of The Health Law Firm provide legal representation to nurses and nurse practitioners in Department of Health (DOH) investigations, Drug Enforcement Administration (DEA) investigations, FBI 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: Lance O. Leider, J.D. 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., Altamonte Springs, FL 32714, Phone: (407) 331-6620.

Tips, Pointers and Reminders for Administrative Hearings

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

Formal administrative hearings are one of the options provided to a person who has significant (or substantial) interests that will be affected by agency action and who contests the material facts involved in the case.

In this blog, we are usually discussing a hearing involving the professional license of the nurse. In many cases this will be a notice of intent to deny a license application; however, in most cases, it will be based on an administrative complaint filed against the nurse charging the nurse with a violation of the Nurse Practice Act or other misconduct.

A formal administrative hearing is the only chance which is provided to a nurse to actually challenge the facts of the case and show, for example, that she is not guilty of the charges alleged against her. The formal administrative hearing is the only proceeding in which the nurse against whom the complaint is filed (called the “respondent”) may confront the evidence against her (documents and witnesses) and introduce her own evidence (including her own testimony, if desired), to show she is not
guilty of the charges.

Formal administrative hearings are governed by the Florida Administrative Procedure Act (APA), Chapter 120, Florida Statutes. Please see the separate chapter in this Manual on the Administrative
Procedure Act.

Our Tips, Pointers and Reminders for Administrative Hearings.

This is a partial checklist of some of the matters we check in preparing for administrative hearings. It is not complete and it may not apply in every case. It should serve as a reminder of certain issues that
should be checked up on prior to the actual date of the hearing.

1. If you need one, make sure to notify the ALJ or make a reservation for a televison monitor, VCR/DVD, projector, screen, or conference phone early (when the original order setting the hearing is received), and follow up with a confirmation letter to the hearing coordinator.

2. Make sure all witnesses testifying have been listed in your answers to interrogatories, and if not, amend your answers to include all witnesses. Also, check the witness list for the pre-hearing stipulation.

3. File all discovery responses/answers immediately when received, with the Clerk of the Division of Administrative Hearings, using a notice of filing, so these will be in the official record. If there is discovery not answered, do a motion to compel (except with requests
for admissions).

4. Some administrative law judges have ceratin procedures they require or certain things they don’t allow in hearing procedures. It is a good idea to check with someone else who has appeared before the ALJ to find out if that ALJ has any.

5. Go onto the Division of Administrative Hearing website, search for and review the last few recommended orders (ROs) and Final Orders on your administrative law judge ahead of time. This will give you an idea of what the administrative law judge is like and how he/she has ruled on various issues in the past. The DOAH website is (www.doah.state.fl.us). Go to case search, put in ALJ’s name and agency name (for example DOH) to obtain Recommended Orders on similar cases.

6. On the day of the hearing, get to the room at the final hearing site early to organize and re-set the room if necessary, to choose where you want to sit. Rearrange the room, if necessary to have a proper hearing setting to create one large conference able in the middle, as most administrative law judges seem to prefer this.

7. Investigation reports are inadmissible as hearsay. You must object to them if the DOH attorney attempts to introduce one.

8. Also, settlement negotiations (including the transcript or minutes of Board meeting at which a settlement stipulation was considered, and any statements made by the respondent or anyone else in support of it are inadmissible, per Rule 90.408 (civil) and Rule 90.410
(criminal) of the Rules of Evidence.

9. Affidavits are considered hearsay evidence, but since this is an administrative hearing the ALJ may allow one or more into evidence, if it is being used to corroborate previously admitted evidence.

10. If you want to introduce an affidavit at hearing and you have the witness who made the affidavit available, have the witness present, have the witness take the stand and testify from the affidavit.

11. Bring a copy of the most recent DOAH court docket for case, to be able to prove that a document was or was not filed.

Although not directly applicable to a formal administrative hearing involving a nursing license case, the following checklist which we use for formal hearings involving Medicaid benefits, may also be useful to you.

Contact Health Law Attorneys Experienced in Representing Nurses Administrative Hearings.

The Health Law Firm’s attorneys routinely represent nurses in administrative hearings, depositions, Department of Health investigations, before the Board of Nursing, and in appearances before the Board of Nursing in licensing matters.

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.

Your Professional Nursing License May Be Your Most Valuable Asset; Insure It!

5 Indest-2008-2By George F. Indest III, J.D., M.P.A., LL.M., Board Certified by The Florida Bar in Health Law

Suppose you had an item that you really wanted but was very expensive.  Suppose this item cost you $80,000.  Perhaps you took out a loan in order to pay for the item.

Suppose in addition to paying $80,000 you also had to work for four years and contribute four years of your labor to help pay for the item.  For this example, let’s assume your four years of labor is equivalent to an additional $80,000.  Once you can afford the item, you will have invested the equivalent of $160,000 for it.

In order to protect this expensive item, would you insure it?  If this item produced additional income for you, would you insure it?  After considering the price tag of the item, and knowing you have achieved something few others ever do, would you insure it for its full value?

I think almost everyone would answer yes to the questions above.  I certainly would, and I expect you would too.

Yet, I am constantly contacted by nurses who have worked hard for many years, have paid tens of thousands of dollars in tuition, fees, books, and who have sacrificed in order to obtain a nursing degree and nursing license.  Yet, they have not purchased insurance to protect their hard earned licenses.

I am baffled at the number of nurses who come to us in serious trouble because a complaint has been filed against them by a former employer, vengeful co-worker, unhappy patient (or patient’s family), or disgruntled former spouse, boyfriend, girlfriend, etc.  Often the issues are complex.  The legal procedures surrounding administrative complaints and administrative hearings are certainly complicated and confusing.  Yet they do not have the savings to hire an experienced attorney to defend them, and they do not have insurance to cover their defense.

I’m not speaking of professional liability insurance when I am writing this.  I am speaking of insurance to cover your legal defense expenses in the event a complaint is filed against you, jeopardizing your nursing license.  A nursing license with discipline on it is like an old antique painting with a big hole in it; its value is greatly diminished.  A nursing license with disciplinary action is worth a lot less than one that is unblemished.  It is not as marketable as one with no damage on it.

In my experience, nurses are far more likely to have a complaint filed against them resulting in an investigation for possible discipline against their licenses than they are to have a professional liability suit filed against them.  That is why I say that you should purchase nursing liability insurance because of the professional licensure defense coverage it provides;  not because it pays in the event of a law suit.

Furthermore, given that most popular nursing liability insurance (e.g., Nurses Service Organization (NSO) Insurance, CPH & Associates Insurance) is very inexpensive (as little as $10 a month), it is foolish not to be insured.  You have an extremely valuable asset that could easily produce $2 million in income during your lifetime.  Don’t you think a hundred dollars a year is worth paying to help protect it?

This is why I stress buying nursing liability insurance.  Buy it now!  Be sure you are covered for at least $25,000 in professional license defense expense coverage and preferably more, if you can get it.  Buy two policies if necessary.  But buy it!  If you don’t, when you really need it, it will be too late.  You may lose that valuable asset you worked so hard to get.

Comments?

Have you dragged your feet in purchasing professional liability insurance? If so, why? Did reading this blog change your mind? Please leave any thoughtful comments below.

Contact Health Law Attorneys Experienced in Representing Nurses.

The Health Law Firm’s attorneys routinely represent registered nurses, nurse practitioners, advanced practice registered nurses, certified registered nurse anesthetists, midwives and licensed practical nurses in Department of Health (DOH) investigations, in appearances before the Board of Nursing in licensing matters and in many other legal matters. We represent nurses across the U.S., and throughout Florida.

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.

“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.

Join Us for Florida Laws and the Nurse: New Licensure Requirement

Join Joanne Kenna nurse attorney with The Health Law Firm and the Greater Orlando Chapter of the American Association of Legal Nurse Consultants for:

FLORIDA LAWS AND THE NURSE – NEW LICENSURE REQUIREMENT:  Keep Your Patients Safe and Protect Your Nursing License

PROGRAM OBJECTIVES

The purpose of this is course is to provide nurses with knowledge of the Florida Laws and Rules that govern the practice of nursing in Florida, while meeting the 2015 requirement for Florida nurse licensure and renewal; and to provide valuable information regarding the structure and purpose of the Florida Board of Nursing Disciplinary Process and how to protect your nursing license by providing excellence in nursing care.

Upon completion of this course, you will be able to:

  • Describe the purpose and provisions of the Health Professions and Occupations Statue, the Florida Nurse Practice Act and Florida Health Professions Regulations;
  • Describe nursing standards of practice and identify deviations in standards;
  • List the steps in the Florida Nursing Disciplinary Process;
  • List specific sources of nursing practice that have high potential for putting a nursing license at risk of discipline.
  • Describe resources and procedures to protect your nursing license and respond to disciplinary action by the Florida Board of Nursing.

Beginning with the biennium ending in 2015, each Florida Nursing licensee must complete a two hour course on the laws and rules that govern the practice of nursing in Florida.  This program is approved by the Board of Nursing to meet the requirement.

SPEAKERS FOR THIS PROGRAM ARE:

ATTORNEY JOANNE KENNA, RN, JD is an attorney, whose practice encompasses most aspects of health law and nursing law, including the representation of health care providers in professional licensing and credentialing matters, professional board representation, administrative hearings, contracts, licensure issues, corporate matters, transactional matters and litigation.  Ms. Kenna received her juris doctorate degree from Stetson University College of Law.  She has an extensive legal background including medical malpractice defense and nursing home defense.  Prior to law school, Ms. Kenna’s nursing career included at the University of Chicago Hospitals and Clinics included being the head nurse of the cardiac critical care units, a cardiac nursing instructor and cardiac nursing consultant.  She brings a vast amount of experience and expertise to her role in health law.

JUDY A. YOUNG, RN, MSN, MHL is a nurse with over 38 years experience, 20 of which were served in the US Air Force.  Judy is the owner of Florida Legal Nurse Experts, LLC, and works as an independent Legal Nurse Consultant.  Judy’s LNC experience includes defense of mass torts / product liability; expert witness for both plaintiff and defense; and behind the scenes LNC roles for both plaintiff and defense firms.  She currently does medical malpractice defense work.  She also remains clinically active in critical care.  In addition to decades of critical care experience, Judy has been a nursing school director and instructor, and has experience in nursing administration and flight nursing.  She has a master’s degree in nursing from University of Oklahoma, and a master’s degree in health law, from the Sheppard Broad Law Center, Nova Southeastern University, Ft. Lauderdale, FL.

WHEN: October 28, 2014 – Social (light food) & Networking – 5:30 – 5:45 PM; Chapter Update Meeting 5:45 – 6:00 PM; and Education Program 6:00 – 8:00 PM.

CONTINUING EDUCATION CREDITS: 2.0 contact hours, as part of the total hours of continuing education required for initial licensure and biennial renewal, FL Administrative Code 64B9-5.011.  Approved by The Greater Orlando Chapter AALNC, FL Board of Nursing Continuing Education Provider #: 50-13.  LNCCs – This topic qualifies as contact hours that can be applied toward LNCC certification renewal.  If you are submitting this program as contact hours on application for LNCC renewal, report these hours on the application as nursing contact hours.

WHERE:  PLEASE NOTE NEW LOCATION!!!  We are now holding our Greater Orlando Chapter AALNC Meetings at University of Central Florida (UCF).  The street address is UCF Continuing Education, Innovative Center, 3280 Progress Drive, Suite 700, Orlando, FL 32826,  Room 722.

REGISTRATION:  If you plan to attend the meeting in person, PLEASE RSVP by contacting:  info@orlandoaalnc.org.  If you are a guest, please provide your name, address and FL nursing license number for continuing education credit and course completion certificates.

**NEW REGISTRATION INFORMATION:  Members and guests will be able to attend the program in person or “virtually” by logging in online.  Registration to attend the meeting online, will be completed through UCF Continuing Education.  Information regarding the online registration process will be sent ASAP.  The program will also be available for online attendance at any time after the live meeting.

FEES: The meeting / program is free to all Greater Orlando Chapter Members.  There will be a fee for guests:  $25.00 for in person attendance.  Virtual (online) attendance is also free for members, and $25.00 for guests.

Terrible Things That Can Happen after Discipline on Your Nursing License or Resignation of a Nursing License after Notice of Investigation

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

Do you have nursing licenses in several different states? Do you have a license in more than one health profession? Have you been notified that an investigation has been opened against you? Are you thinking about resigning your nursing license or voluntarily relinquishing such a license? Then you must be aware of the following.

First, you should never voluntarily relinquish or resign your license after you know that an investigation has been opened or that disciplinary action has been taken against you. Such 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 out to other states, agencies, to the National Practitioner Data Bank (NPDB), to any certifying bodies for certifications you have and to other reporting agencies (such as the National Council of State Boards of Nursing for its NURSYS data bank). Other states and other professional boards will most likely initiate disciplinary action based upon the first one.

Protect Your Nursing License from These Adverse Actions.

The following is a list of some of the adverse actions that you can expect to be taken against you after discipline on your license or after you resign your nursing 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 or HIPDB recently merged into the NPDB.

2. 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 nurse has a license will also initiate investigation and possible disciplinary action against him or her in that jurisdiction. (Note: I have had two clients who had licenses in seven other states and all, even ones that were inactive or not renewed years ago, 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 most 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. 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. 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. If this happens, your state Medicaid Program is required to terminate you “for cause” from the state Medicaid Program. In many states, this is also grounds for revocation of your nursing 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) 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 membership 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 advance registered nurse practitioners (ARNPs), certified registered nurse anesthetists (CRNAs), nurse midwives or certified nurse anesthetists (CNAs).

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 You Do?

– Don’t take the easy way out by immediately relinquishing your license if you are notified you are under investigation.

– Don’t hide your head in the sand by thinking the case will just go away on its own.

– Don’t take the easy way out. If you are innocent of the charges, request a formal hearing and contest the charges; defend yourself.

– 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.”

– 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.

A Health Lawyer’s Opinion on 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 who 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.

Contact Health Law Attorneys Experienced in Representing Nurses.

The Health Law Firm’s attorneys routinely represent nurses in Department of Health (DOH) investigations, in appearances before the Board of Nursing in licensing matters and in many other legal matters. We represent nurses across the U.S., and throughout Florida.

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.

“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.

Think You Have Professional Liability Insurance Through Your Employer? Think Again, Nurse!

00034_RT8By Joanne Kenna, R.N., J.D., The Health Law Firm

Not a week goes by without a call coming into the firm from a nurse whose license is under investigation for some reason or another.  The nurse is generally dumbfounded that this has happened.  “But I’m a good nurse.  I never thought this could happen to me,” is the sad refrain.

Very often the nurse is correct.  He/she is a clinically good nurse.  Often there has never been any prior problem or any question of this.  But all it takes is one instance, just one violation that gets reported to the Department of Health (DOH), and the nurse is suddenly in the position of having his/her license investigated.  The nurse then has to defend his/her actions to protect the integrity of his/her license, and possibly even his/her ability to continue practicing, against the allegations of the violation.

Employer’s Insurance Coverage Protects the Employer, Not You.

Normally when a licensure investigation is initiated, the nurse is upset and angry, and is determined to do whatever is necessary to protect his/her license.  At this point the intelligent  nurse will usually start making telephone call(s) to seek legal advice and counsel.  Then comes the harsh reality.  Obtaining good legal services is expensive.  It can be very expensive.  Inevitably the question is put to the nurse as to whether he/she has insurance.  All too often the nurse responds that his/her insurance is (or more often at this point, was) through his/her employer.

Then more reality hits.   Often the nurse has already been terminated from employment by this point.  So, no insurance.  Even if the nurse is still employed, the nurse quickly finds out that the coverage he/she believed existed, and often was led by the employer to believe existed, is not really a policy for the nurse at all.  The nurse is “covered” under the hospital’s (you can substitute nursing home, clinic, etc., as applicable here) policy really only to protect the hospital’s interests.  Therefore, this “coverage” extends only to those situations and occurrences where the hospital might have liability.  (And even in that case the nurse should be wary because it is really the hospital’s interests that are being protected by the policy.   Where the nurse’s interests happen to be aligned with the hospital’s, all is good.  But where they are not, well, the hospital has coverage and its interests will be protected; as for the nurse, he/she is on his/her own).

What you should know is that the hospital’s insurance coverage is there to protect the hospital – – period.

Protect Your Nursing License with a Personal Professional Liability Insurance Policy.

You should also recognize that no nurse is immune from a professional liability claim.  No matter how conscientious and clinically competent the nurse may be, the potential for a professional licensure action always exists.   Day after day nurses forego legal representation when they are under licensure investigation because legal representation is unaffordable for them.  While some nurses get lucky and will have a good outcome in spite of this, many others will not.  The very idea of gambling with your nursing license that took so much effort to earn and is the key to your future earning capacity, is not only risky, it is downright foolish.

The truth of the matter is that all nurses should protect themselves by obtaining a personal professional liability insurance policy.  A good policy will provide medical malpractice and, very importantly, licensure protection coverage.  The cost on these policies varies, but it is generally quite affordable, often costing little more that $10 – $15 a month.

Licensure protection coverage provides the nurse with the ability to obtain competent legal representation from an attorney or a law firm that is familiar with handling licensure investigations and the disciplinary actions that can ensue from them.  Good policies will provide $10,000 – $25,000, and even more for legal expense.  Having this money available at the time it is needed allows the nurse to focus on his/her defense and provides the nurse the opportunity to pursue this defense all the way through the administrative process.  All too often the alternative is having the limited available funds dictate the nurse’s acceptance of an undesired resolution to the matter.

Be Smart, Get Professional Insurance Before it is Too Late.

So, if your independently wealthy, you can continue practicing without much concern about how you will be able to afford legal services for licensure defense if and when that becomes necessary.  If though you are not, and your answer to the question of whether you have insurance would be that you do through your employer, now is the time to start thinking about changing that.  Tomorrow just might be too late.

Contact Health Law Attorneys Experienced in Representing Nurses.

The Health Law Firm’s attorneys routinely represent nurses in Department of Health (DOH) investigations, in appearances before the Board of Nursing in licensing matters and in many other legal matters. We represent nurses across the U.S., and throughout Florida.

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

Comments?

Do you have personal professional liability coverage? Are you thinking about getting it now? Please leave any thoughtful comments below.

About the Author: Joanne Kenna is a nurse-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 Avenue, Altamonte Springs, Florida 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 © 1996-2012 The Health Law Firm. All rights reserved.

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