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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 Such a resignation is considered to be a “disciplinary relinquishment” and is treated the same as if your license had been revoked on disciplinary grounds.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.

By The Health Law Firm|2024-03-14T10:01:16-04:00May 15, 2018|Categories: Board of Nursing, Defense, Discipline, Nurse License|Tags: Administrative Hearing, advance registered nurse practitioners (ARNPs), and Lloyd's of London Insurance, certified nurse anesthetists (CRNAs), certified registered nurse anesthetists (CRNAs), CPH & Associates Insurance, defense attorney, defense lawyer, Department of Health and Human Services (HHS), Department of Health investigation of a nurse, disciplinary relinquishment, discipline on your nursing license, exclusion from the Medicare Program, Healthcare Providers Organization (HPSO) Insurance, investigation of a nurse, List of Excluded Individuals and Entities, National of Sate Board of Nursing (NURSYS), National Practitioner Data Bank (NPDB), nurse, nurse attorney, nurse excluded from the Medicare Program, Nurse lawyer, nurse midwives, nurses, Nurses Service Organization (NSO) Insurance, nursing license, Office of the Inspector General (OIG), professional licensing matter, resignation of a nursing license, the health law firm, voluntary relinquishment, voluntary relinquishment of a nursing license|Comments Off

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

By 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.

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.

By The Health Law Firm|2024-03-14T10:01:17-04:00May 15, 2018|Categories: Nursing Law Blog|Tags: am I covered by my employer’s insurance, counsel for nurses, CPH and Associates, Department of Health (DOH), employer insurance coverage, good nurse, Healthcare Providers Service Organization (HPSO), hospital’s insurance, legal advice for nurses, license investigation, licensure defense, licensure investigation, licensure protection coverage, Lloyd’s of London, medical malpractice insurance, nurse, nurse attorney, nurse insurance, nurse insurance coverage, nurse investigation, Nurse lawyer, nurse license investigation, nurse professional liability insurance, Nurse Service Organization (NSO), nurses, nursing license, practicing nurse, professional liability claim, professional liability insurance, terminated nurse, the health law firm|1 Comment

Nurses, No More Excuses: Get a Personal Professional Liability Insurance Policy Now-Part 1

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

To protect yourself from automobile accidents, you carry auto liability insurance. To protect your home from fire, storms and other accidents, you carry homeowners’ insurance. However, I have noticed many nurses fail to carry any insurance to protect one of their most precious assets, their nursing licenses. Yet such insurance is cheap and easy to obtain. I cannot stress enough how important it is for a nurse to carry a personal professional liability insurance policy that covers any investigation, complaint or administrative hearing that might be filed or opened against a nurse’s license.

In my experience, I’ve heard every excuse as to why a nurse does not have a personal professional liability insurance policy. In this blog series, I am exploring those excuses. I want every nurse to understand the importance of buying personal professional liability insurance now, before it is too late.

Keep in mind that a great deal more nursing license complaints are filed against nurses than there are liability lawsuits.

Excuse: I Am a Good Nurse, I Don’t Need Professional Liability Insurance.

You may be a good nurse, but good nurses are the subject of lawsuits and complaints. All it takes is just one violation that gets reported to the DOH or BON, and the nurse is suddenly in a position of having his or her license investigated. The nurse then has to defend his or her actions to protect the integrity of his or her license, and possibly the ability to continue practicing.

The harsh reality is that legal representation is very expensive. Without insurance, even if the nurse is found to be not negligent, the nurse is still responsible for the attorney’s fees and expenses incurred during trial. However, professional liability insurance will protect the nurse in the event of a lawsuit, and it may also pay legal defenses in the event of a complaint against the nurse’s license to practice or for other legal problems.

Excuse: I am Covered By My Employer’s Insurance.

We hear this on a weekly basis. Many nurses mistakenly believe that their employer insures them for legal fees and costs associated with defending against licensure complaints, Emergency Suspension Orders (ESOs), Notices of Investigation, and Administrative Complaints. In the overwhelming majority of cases, this is false. Often it is the employer that files the complaint against the nurse that causes the investigation. If you are told your employer will cover you in such circumstances, ask for a letter in writing and signed by the employer stating that the employer will pay for your defense in any DOH or BON investigation or subsequent administrative proceedings that arise out of your employment. It is unlikely that you will get it.

When a nurse is “covered” under a hospital’s (you can substitute nursing home, clinic, etc., as applicable here) policy, that policy primarily protects the hospital’s interests. Therefore, this “coverage” extends only to those situations and occurrences where the hospital might have liability.

Check This Blog for More.

I will continue to explore excuses I hear from nurses as to why they do not have a personal professional liability insurance policy in later blogs.

It is my hope that after reading this you will look into purchasing your own professional liability insurance policy.

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 (BON) 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 a personal policy now? Please leave any thoughtful comments below.

By The Health Law Firm|2024-03-14T10:01:17-04:00May 15, 2018|Categories: Board of Nursing, Defense, Department of Health, Insurance, Nurses Service Organization|Tags: am I covered by my employer’s insurance, counsel for nurses, CPH and Associates, defense attorney, defense lawyer, Department of Health (DOH), employer insurance coverage, good nurse, Healthcare Providers Service Organization (HPSO), hospital’s insurance, legal advice for nurses, license investigation, licensure defense, licensure investigation, licensure protection coverage, Lloyd’s of London, medical malpractice insurance, nurse, nurse attorney, nurse insurance, nurse insurance coverage, nurse investigation, Nurse lawyer, nurse license investigation, nurse professional liability insurance, Nurse Service Organization (NSO), nurses, nursing license, practicing nurse, professional liability claim, professional liability insurance, terminated nurse, the health law firm|1 Comment

Nurses, No More Excuses: Get Personal Professional Liability Insurance Policy Now-Part 2

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

Nurses, I am writing this to strongly encourage you to purchase your own professional liability insurance policy. I have noticed many nurses fail to carry any insurance to protect one of their most precious assets, their nursing licenses. Yet such insurance is cheap and easy to obtain. Professional liability insurance will protect a nurse in the event of a lawsuit, and it may also pay legal defenses in the event of a complaint against a nurse’s license to practice or for other legal problems. If you already have nursing liability insurance, make sure it also pays all legal expenses incurred in defending a complaint against your license.

I’ve heard every excuse as to why a nurse does not have professional liability insurance. In this blog series, I am exploring many of those excuses. I want every nurse to understand the importance of buying personal professional liability insurance now, before it is too late.

This is part two of the series, click here to read part one.

Excuse: Professional Liability Insurance is Expensive.

All nurses should protect themselves by obtaining professional liability insurance. A good policy will provide medical malpractice and, very importantly, licensure protection coverage. The costs on these policies vary, but it is generally quite reasonable. It is common to find professional liability insurance that provides excellent coverage and excellent benefits for less than a dollar a day. We’ve seen policies cost as low as $10 to $15 a month. That is a small price to pay to protect your livelihood.

Excuse: Licensure Defense Coverage Is Not Necessary.

When you buy professional liability insurance, again, it is very important you make sure it includes legal defense coverage for professional licensing defense and other administrative proceedings in an amount of coverage of at least $25,000. If it does not, I recommend you purchase a “rider” or additional coverage from that insurer for a small additional premium. Also, attempt to obtain “broad form coverage.” This will pay for your legal defense costs for other types of regulatory and administrative proceedings such as: a) an internal hospital/facility peer review proceeding; b) a Medicare or Medicaid audit or investigation; c) a Medicare medical quality assurance investigation or review; d) an EEOC discrimination or harassment complaint or investigation; e) an alleged HIPAA privacy violation; f) a hospital clinical privileges action (if you have privileges); g) action to exclude you from the Medicare or Medicaid Program; or h) action to suspend or revoke your DEA registration (if you have one). There are some insurance companies that sell professional license defense and defense costs and expenses for other types of administrative proceedings as a stand-alone insurance policy.

You should buy this coverage now, when you don’t need it. Otherwise, when you do need it, it will be too late.

Contact Health Law Attorneys Experienced in Representing Nurses.

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 a personal policy now? Please leave any thoughtful comments below.

By The Health Law Firm|2024-03-14T10:01:18-04:00May 15, 2018|Categories: Defense, Insurance, Malpractice, Nurse License|Tags: am I covered by my employer’s insurance, counsel for nurses, CPH and Associates, defense attorney, defense lawyer, Department of Health (DOH), employer insurance coverage, good nurse, Healthcare Providers Service Organization (HPSO), hospital’s insurance, legal advice for nurses, license investigation, licensure defense, licensure investigation, licensure protection coverage, Lloyd’s of London, medical malpractice insurance, nurse, nurse attorney, nurse insurance, nurse insurance coverage, nurse investigation, Nurse lawyer, nurse license investigation, nurse professional liability insurance, Nurse Service Organization (NSO), nurses, nursing license, practicing nurse, professional liability claim, professional liability insurance, terminated nurse, the health law firm|Comments Off

Advice for Nurses Regarding Department of Health Investigations

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

We see and hear about a lot of incorrect legal advice being given to nurses regarding what they should do if they are being investigated.

The incorrect advice being given even includes mailings they may have received containing a brochure “What Every Nurse Needs to Know” published by the National Council of State Boards of Nursing. It gives advice in response to the question: “What should you do if you are the subject of a complaint?” It advises the nurse to contact the Board of Nursing (BON) immediately in such an event and states that the complaint will be handled in a “fair and appropriate matter.” It advises that a BON representative will describe the investigation process and answer any questions that you may have about an investigation if a complaint is filed against you.

This does not appear to be sound advice and we would warn nurses against following it. Such advice may cause great damage to any defenses you may have, even if you are totally innocent. If you don’t believe me, then contact a nurse who has been investigated and has received discipline and ask him or her what he or she thinks about this. Alternatively, attend a Board of Nursing meeting and observe first hand the disciplinary cases that come before it (you can even get free continuing education credits for doing this) and talk to some of the nurses there.

You Have a Constitutional Right in Florida to Refuse to Make a Statement

Most states, Florida included, do not require you to make any statement to an investigator (or attorney) working on a Board of Nursing complaint. We recommend that you not do so.

Under Florida law, your constitutional right to not make any statement that might help to incriminate you applies to such proceedings. Nurses are often falsely accused of misconduct or wrongdoing by patients, families of patients, employers and rivals. Most states do have adequate procedural safeguards in place that, if used by the nurse, will help to ensure the correct outcome of the matter. However, you must first know what these rights and safeguards are, and then know how to use them to your advantage in such proceedings. Very few attorneys are experienced in such matters and even fewer nurses are.

Investigations That May Affect Your Professional License Are Considered to Be “Penal” or “Quasi-criminal” Investigations

You should think of the investigation in the same light as a criminal investigation against you if you were wrongfully accused of a crime. In the case of a BON complaint, you can lose your license, lose your career, and be assessed monetary fines in the thousands of dollars. Why would you want to contact the investigator in such a matter and make statements that can later be used against you, if you don’t have to?

In most states, Florida included, the burden of proof is on the state to prove every element of the case against you. However, if you make any statements to the investigator (or the attorney for the Board), oral or written, this can be used against you. Even the simplest, most innocuous statements can cause you tremendous difficulty, because anything you say is something the state is no longer required to prove in an investigation or a hearing.

Even the Simplest Statement You Make Can Be Used Against You

For example, the state may not have an admissible document or a witness who is available at the time who can state that you actually saw or treated the patient. Without being able to prove this, the state may not be able to prove any charge against you.

Yet if you make a simple statement that you did treat the patient, the state no longer has to introduce any other proof of this. You have helped the state to prove its case against you without even meaning to do so. You have now made the case against you quicker, easier and less expensive for the state to prove; you may have made the case against you possible to prove when otherwise the state would not have been able to prove it at all.

Board of Nursing Does Not Usually Give Legal Advice to Nurses

It has also been our experience that BON representatives and staff do not have the time or resources to answer every question you may have. Furthermore, BON representatives are not able to give you legal advice on what to do. Even if you do speak with an attorney representing the BON, that attorney is not allowed by law to give you legal advice. Remember, the attorney representing the BON works for the state and is similar to a prosecutor. If you were charged with a criminal offense, would you call up the attorney prosecuting you and ask for her or his legal advice on what to do?

Nursing Liability Insurance May Cover Your Legal Defense of a Complaint Against Your License; Call Your Insurer Right Away

If you have nursing malpractice insurance, your professional liability insurance will most probably pay for your legal defense of a complaint filed against you, for a subpoena sent to you or for any deposition you must give. The need for defense of a complaint filed against you with the state licensing agency occurs many times more frequently than the need to defend a nursing malpractice claim or suit. This is the main reason we recommend that every nurse purchase nursing malpractice insurance. It is very inexpensive and usually provides excellent coverage.

However, always check to make sure that it will cover your legal expenses in a nursing complaint whether or not it results in a potential malpractice claim. If possible, purchase a rider to raise the limits of such legal defense payments for licensure defense to at least $50,000. If this is not available from this insurer, purchase a second policy.

Most nursing professional liability insurance allows the nurse to select the attorney of his or her choice to defend her or him. This is a very desirable feature to have in a professional liability insurance policy. Otherwise, the insurance company will reserve the right to pick your attorney, whether or not you agree with the choice.

Your Employer Ain’t Gonna Cover You

Many nurses make a terrible mistake thinking “I work for a hospital; the hospital insures me.” Or “I work for a nursing home, the nursing home insures me.” This is not correct when it comes to complaints filed with the Board of Nursing or Department of Health. A hospital will have insurance (or will self-insure) to cover itself, not you. A nursing home will have insurance to cover itself, not you. If you have a complaint filed against you with the Board of Nursing, it is very rare that your employer will pay for your legal defense; additionally this will almost never occur if you no longer work for that employer.

In many cases, and in most cases we have seen in the past, it has been the employer hospital or the employer nursing home that has filed the complaint with the against the nurse. You don’t think the employer is going to pay for your legal defense if it has filed the complaint against you, do you? In addition, the employer who has filed the complaint, in the vast majority of cases, also fires the nurse. So you may be out of a job as well as not be able to pay for a legal defense of your license.

If your employer obtains an attorney to represent you in a matter, ask the attorney: “Do you work for me or the employer?” Also ask: “If there is a conflict between my defense and the employer’s defense, will you continue to represent me or will you represent the employer?” Ask these questions in writing and get the answer in writing.

Failing to purchase professional liability insurance to protect your license is not very smart given how inexpensive it is. You have worked many years to obtain your professional license. You and your family have spent a great deal of money for your education to achieve it. If you can’t afford a legal defense, you may be forced into accepting a settlement agreement (also referred to sometimes as a “stipulation” or a “plea bargain”) for some type of disciplinary action. Even if you only receive some small disciplinary action, this will be shown on your license forever. It will be reported to national reporting agencies and will prevent many employers, especially the good employers from hiring you. It may even bar you from working in some circumstances. If you have a professional license in another state, it will be reported to the other states and similar disciplinary investigations will be started against you in these other states.

Consult with an Experienced Attorney, Regardless

Even if you don’t have insurance that covers your legal defense in an investigation that has been opened against you, please locate and consult with an experienced health lawyer who routinely defends nurses in nursing board cases. Additionally, don’t believe or rely on all of the rumors, gossip and “legal advice” that your colleagues who are not lawyers (or even your lawyers friends who are not experienced health lawyers) will give you. The fee for the legal consultation is worth the price. Make your decisions from a position of experienced knowledge, not one of ignorance or false assumptions.

We recommend that if you receive any notice or indication that anyone has filed a complaint against you with the BON or any other licensing agency that you do not contact the BON, its investigators, or any of its representatives. We recommend that you immediately contact an attorney who specializes in defending nurses before the BON.

Locating an Experienced Attorney

If you are unable to locate an attorney experienced in handling nursing cases, contact The Health Law Firm, The American Association of Nurse Attorneys (TAANA), the American Health Lawyers Association (AHLA), or your state bar association, by telephone or by visiting their website. Ask for a referral to such an attorney. Be sure to ask the attorney how many similar cases has she or he actually handled before the Board of Nursing.

This Advice Applies to Other Health Professionals as Well

The foregoing information applies to doctors, dentists, pharmacists, advanced registered nurse practitioners (ARNPs), certified registered nurse practitioners (CRNAs), midwives, physician assistants, massage therapists, psychologists, mental health counselors, social workers, and all other licensed health professionals; not just to nurses.

The attorneys of The Health Law Firm represent nurses, doctors, dentists, pharmacists, advanced registered nurse practitioners (ARNPs), certified registered nurse practitioners (CRNAs), midwives, physician assistants, massage therapists, psychologists, mental health counselors, social workers, physical therapists, respiratory therapists, medical students, residents, interns and all other licensed health professionals, in Florida and also in states other than Florida. In many states we are permitted to represent the health professional in investigations and administrative proceedings.

The Bottom Line: Don’t Talk to Investigators

The bottom line is: Don’t talk to an investigator until your attorney has checked him or her out and advises you it is okay to do so. This will rarely happen.

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

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

By The Health Law Firm|2024-03-14T10:01:54-04:00May 15, 2018|Categories: Administrative Complaints, Administrative Hearing, Board of Nursing, CRNA, Defense, Department of Health, Discipline, Insurance, Malpractice|Tags: administrative charges, administrative complaint, attorney, certified registered nurse anesthetists (CRNA), Department of Health (DOH) Investigation, disciplinary action, Florida Board of Nursing, investigator, legal defense, malpractice insurance, nurse practitioners, nurses, nursing insurance, nursing license|Comments Off

Nursing Professionals Cannot Afford to Not Carry Nursing Malpractice Insurance

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

Nurses: Please Protect Yourself With Professional Liability Insurance.

I am writing to strongly encourage you to purchase nursing professional liability insurance that covers you for complaints and investigations initiated against you and your nursing license.

I am not affiliated with any insurance company. I am not receiving any commission, fee or reimbursement for writing this article. My concern lies in the many, many nurses who contact our firm with Emergency Suspension Orders, Notices of Investigation, Administrative Complaints and Final Orders from the Department of Health, Board of Nursing, who do not have the funds to hire an attorney to defend themselves.

Employers Generally Do NOT Provide Legal Defense.

Many nurses mistakenly believe that their employer insures them for these types of events or that their employer will provide a legal defense. In the vast majority of cases, this is false. Often it is the employer that files the complaint against the nurse that causes the investigation. If you are told your employer will cover you in such circumstances, ask for a letter in writing and signed by the employer stating that the employer will pay for your defense in any Department of Health investigation or subsequent administrative proceedings that arise out of your employment. It is unlikely that you will get it.

You Will Need an Experienced Health Law Attorney to Help Navigate Department of Health Proceedings.

You need an experienced attorney to represent you in any sort of Department of Health complaint investigation from the very beginning. The administrative law process is complex, especially when there is an Emergency Suspension Order or Administrative Complaint. It is easy for a nonlawyer to be confused and to waive important legal rights that result in discipline on your license, requirements that cannot be met or the revocation of the nursing license.

For example, many nurses believe that if they elect an informal hearing, they will be allowed to go before the Board of Nursing and argue the facts of their case to their peers. This is not true. If you elect an informal hearing, you are admitting that all material facts stated against you in the Administrative Complaint are true (in effect you are pleading guilty). You will only be allowed to argue about what discipline should be taken against you since you have admitted to the offense(s). You have waived your right to a “formal hearing” where you are allowed to testify and introduce evidence to show you did not commit the offenses.

If you receive an Emergency Suspension Order and you believe you can successfully appeal it, you might be surprised. Any such appeal is a formal legal appeal to a Florida District Court of Appeal (DCA). This is a very formal procedure that only examines legal errors made by the Department of Health, Board of Nursing, in taking the action it took. Furthermore, everything stated in the ESO is assumed to be true for the purpose of the appeal. You are not allowed to dispute the facts stated in the ESO.

An appeal requires formal legal research and analysis, the preparation of legal briefs that comply with strict appellate rules of procedure. Most nurses do not have a clue how to do this. Even among attorneys, the practice of filing and arguing appeals is considered to be a legal specialty because of its complexity.

Additionally, there are other actions that an experienced health attorney may take, if you have an ESO or Final Order, that may be far more effective and expeditious to obtain relief for you than appealing it.

Regardless, if you do not have the money (usually $10,000 or more) or insurance coverage to retain the services of an experienced attorney to represent you, you may have little hope of successfully defending yourself from untrue or unjust complaints, from preventing an undesirable result, or from obtaining relief from an ESO or Final Order.

Make Sure that Your Professional Liability Insurance Covers Professional Licensing Defense.

If you have professional liability insurance, make sure it includes legal defense coverage for professional licensing defense and other administrative proceedings in an amount of coverage of at least $25,000.00. If it does not, you should be able to purchase a “rider” or additional coverage from that insurer for a small additional premium. Also, attempt to obtain “broad form coverage” that will also pay for your legal defense costs for other types of regulatory and administrative proceedings such as: a) an internal hospital/facility peer review proceeding; b) a Medicare or Medicaid audit or investigation; c) a Medicare medical quality assurance investigation or review; d) an EEOC discrimination or harassment complaint or investigation; e) an alleged HIPAA privacy violation; f) a hospital clinical privileges action (if you have privileges); g) action to exclude you from the Medicare or Medicaid Program; or h) action to suspend or revoke your DEA registration (if you have one). There are some insurance companies that sell professional license defense and defense costs and expenses for other types of administrative proceedings as a stand-alone insurance policy.

At the very least, however, you should have the basic coverage to defend you in a complaint against your nursing license.

Research Your Insurer’s Policy on Attorney Selection.

You should also check with the insurance company before you purchase a policy to determine if the insurer will allow you to choose your own attorney in a licensure defense action. Some insurers may require you to use the attorneys with whom they contract, removing your ability to make this decision.

Insurance Companies That Provide Professional License Defense Coverage for Nurses.

Insurance companies that we are aware provide professional license defense coverage for nurses, include the following:

Nurses Service Organization (NSO) Insurance

Proliability Insurance Co. (endorsed by the ANA)

NurseGuard Insurance from Granite State Insurance Company

Healthcare Providers Service Organization (HPSO) Insurance

CPH & Associates Insurance

MAG Mutual

The Chicago Insurance Company

Nursing Malpractice Insurance is a MUST for all Nurses.

Nursing malpractice insurance that contains professional licensure defense coverage is inexpensive and can be easily and quickly obtained online. The premium payments for this type of insurance for an R.N. or L.P.N. is usually less than $250 per year. Monthly payment plans are usually available.

We highly recommend that every nursing professional purchase it, even if you work for a hospital, the state or federal government, or in an administrative position.

Other Resources

Butler, T.: “Nurse’s Professional Liability Insurance,” LoveToKnow.com, at:
http://insurance.lovetoknow.com/Nurse%27s_Professional_Liability_Insurance

Chapman, D.: “Professional Liability Insurance For Nurses – Important Facts,” (GoArticles.com, Jan. 30, 2012) at:
http://goarticles.com/article/Professional-Liability-Insurance-For-Nurses-Important-Facts/6021710/

“Frequently Asked Questions about NP Liability Insurance” at:
http://www.acnpweb.org/i4a/pages/Index.cfm?pageID=3468

MacKay, T.: “Worried About a Malpractice Lawsuit? The Board of Nurses Should Worry You More,” at: http://www.healthlicensedefense.com/WorriedAboutaMalpracticeLawsuit.html

Wood, D.: “Do Nurses Need Their Own Professional Liability Insurance?” (AMN Healthcare, Inc., 2011), at:
http://www.travelnursing.com/news-and-features/print-article/do-nurses-need-their-own-professional-liability-insurance/32984

By The Health Law Firm|2024-03-14T10:01:54-04:00May 15, 2018|Categories: Insurance, Malpractice|Tags: administrative charges, administrative complaint, attorney, certified registered nurse anesthetists (CRNA), Department of Health (DOH) Investigation, disciplinary action, Florida Board of Nursing, investigator, legal defense, malpractice insurance, nurse practitioners, nurses, nursing insurance, nursing license|Comments Off

How Disciplinary Actions are Initiated Against a Florida Nurse

There are many possible grounds for which disciplinary action may be initiated against a nurse in Florida. It is important to be familiar with these so that you can avoid them.

You should review and be very familiar with all of the Florida laws and the Florida Board of Nursing’s Rules that appear in the Florida Administrative Code (F.A.C.). These may all be accesses through the Florida Board of Nursing’s website: www.doh.state.fl.us/mqa/nursing/. Look for the menu item “Laws and Rules” and click on this.

The laws which set forth various grounds for discipline include:

Chapter 456, Florida Statutes (which applies to all licensed health professionals).

Chapter 464, Florida Statutes (the Nurse Practice Act).

Chapter 64B9, Florida Administrative Code (Rules adopted by the Board of Nursing).

Basically, a nurse may be disciplined for any violation of the Nurse Practice Act, for any violation of Chapter 456, Florida Statutes, for violation of any Rule of the Board of Nursing (Chapter 64B9, F.A.C.), for violation of any law applicable to nurses or nursing, or for violation of any final order of the Board of Nursing or Department of Health. The most ambiguous of these tends to be actions of the nurse which fail to meet “minimal standards of acceptable and prevailing nursing practice” (sometimes called “falling below the standard of nursing practice” or “substandard performance”), as stated in Section 464.018, Florida Statutes.

Acts that Result in Disciplinary Action Against a Nursing License

Disciplinary action may be taken against the nurse’s license, through administrative proceedings, under the following circumstances, as provided by Section 464.018, Florida Statutes:

1. Procuring, attempting to procure, or renewing a license to practice nursing by bribery, by knowing misrepresentations, or through an error of the department or the board;

2. Having a license to practice nursing revoked, suspended, or otherwise acted against, including the denial of licensure, by the licensing authority of another state, territory, or country;

3. Being convicted or found guilty of, or entering a plea of nolo contendere to, regardless of adjudication, a crime in any jurisdiction which directly relates to the practice of nursing or to the ability to practice nursing;

4. Being found guilty, regardless of adjudication, of any of the following offenses:

A forcible felony as defined in Chapter 776, Florida Statutes;
A violation of Chapter 812, Florida Statutes, relating to theft, robbery, and related crimes;
A violation of Chapter 817, relating to fraudulent practices;
A violation of Chapter 800, relating to lewdness and indecent exposure;
A violation of Chapter 784, Florida Statutes, relating to assault, battery, and culpable negligence;
A violation of Chapter 827, Florida Statutes, relating to child abuse;
A violation of Chapter 415, Florida Statutes, relating to protection from abuse, neglect, and exploitation; and
A violation of Chapter 39, Florida Statutes, relating to child abuse, abandonment, and neglect.

5. Having been found guilty of, regardless of adjudication, or entered a plea of nolo contendere or guilty to, any offense prohibited under Section 435.03, Florida Statutes, or under any similar statute of another jurisdiction; or having committed an act which constitutes domestic violence as defined in Section 741.28, Florida Statutes;

6. Making or filing a false report or record, which the licensee knows to be false, intentionally or negligently failing to file a report or record required by state or federal law, willfully impeding or obstructing such filing or inducing another person to do so. Such reports or records shall include only those which are signed in the nurse’s capacity as a licensed nurse;

7. False, misleading, or deceptive advertising;

8. Unprofessional conduct, as defined by board rule;

9. Engaging or attempting to engage in the possession, sale, or distribution of controlled substances as set forth in chapter 893, for any other than legitimate purposes authorized by this part;

10. Being unable to practice nursing with reasonable skill and safety to patients by reason of illness or use of alcohol, drugs, narcotics, or chemicals or any other type of material or as a result of any mental or physical condition;

11. Failing to report to the department any person who the licensee knows is in violation of this part or of the rules of the department or the board; however, if the licensee verifies that such person is actively participating in a board-approved program for the treatment of a physical or mental condition, the licensee is required to report such person only to an impaired professionals consultant;

12. Knowingly violating any provision of this part, a rule of the board or the department, or a lawful order of the board or department previously entered in a disciplinary proceeding or failing to comply with a lawfully issued subpoena of the department;

13. Failing to report to the department any licensee under Chapter 458 or under Chapter 459, Florida Statutes, who the nurse knows has violated the grounds for disciplinary action set out in the law under which that person is licensed and who provides health care services in a facility licensed under Chapter 395, Florida Statutes, or a health maintenance organization certificated under part I of Chapter 641, Florida Statutes, in which the nurse also provides services;

14. Failing to meet minimal standards of acceptable and prevailing nursing practice, including engaging in acts for which the licensee is not qualified by training or experience; and

15. Violating any provision of this Chapter or Chapter 456, Florida Statutes, or any rules adopted pursuant thereto.

Section 456.072, Florida Statutes, which applies to nurses and all other licensed health professionals, also provides a list of grounds for disciplinary action against a nurse’s license. This information can be found here.

Contact an Experienced Health Attorney Familiar with Nursing Law Issues

The attorneys of The Health Law Firm have experience in representing nurses in both formal and informal administrative hearings and in representing nurses, nurse practitioners, and CRNAs in investigations and at Board of Nursing hearings. Call us now at (407) 331-6620 or (850) 439-1001 or visit our website www.TheHealthLawFirm.com.

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

By The Health Law Firm|2024-03-14T10:01:55-04:00May 15, 2018|Categories: Nursing Law Blog|Tags: administrative charges, administrative complaint, administrative hearing, certified registered nurse anesthetists (CRNA), criminal charges nurse, Department of Health (DOH) Investigation, disciplinary action, election of rights (EOR) form, final order, Florida Board of Nursing, Informal hearing, nurse practitioners, nurses, nursing license, settlement agreement|Comments Off

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

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

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

Despite mailing out hundreds of thousands of postcards and letters to physicians, nurses, dentists, pharmacists, and psychologists 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.

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.

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 medical license revoked or have your nursing license revoked or have your DEA number revoked or lose your Medicare provider status or your Medicaid provider status, 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.

Admitting to Anything Can 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 health professionals 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.

How to Determine the Purpose of the Investigation.

Hint: If it is a Medicaid Fraud Control Unit (MFCU) special agent (investigator), you are probably under investigation for Medicaid fraud.

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 an Office of the Inspector General (OIG) special agent (investigator), you are probably under investigation for Medicare fraud or Medicare false claims.

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.

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.

Consult an Attorney Before You Do or Say Anything.

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 health professional 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 Health Professionals Today.

The attorneys of The Health Law Firm provide legal representation to physicians, nurses, nurse practitioners, CRNAs, 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.

By The Health Law Firm|2024-03-14T10:01:55-04:00May 15, 2018|Categories: Administrative Complaints, Board of Nursing, Department of Health, Discipline, Nurse License|Tags: criminal charges, dea, DEA investigation, DEA number, dentist, doh, FBI, investigation, license revoked, Medicaid investigation, medical license, Medicare investigation, nurse, nursing license, pharmacist, physician, psychologist, quality assurance|Comments Off

Florida HB 0653 Signed Into Law; Effective 2/1/2012

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

The Florida Legislature unanimously passed HB 653 which relaxes some of the draconian exclusions enacted under SB 1986, which went into effect on July 1, 2009. SB 1986, which added provisions to Chapter 456, Florida Statutes, among others, prevented numerous healthcare providers from obtaining or renewing licenses based on prior criminal convictions, which could have occurred decades earlier.

HB 653 has been passed unanimously by the Florida Legislature and has been signed by the Governor to be effective July 1, 2012. It has been signed into law as Chapter 2012-64, Florida Laws and amends Section 456.0635(5), Florida Statutes (2012).

Under HB 653, the professional boards within the Department of Health (such as the Board of Medicine, Board of Nursing, Board of Psychology, Board of Massage Therapy, etc.) now will, if signed by the Governor, only prohibit the renewal or granting of a health professional’s license, certificate or registration, if the individual:

1. Has been convicted of, or entered a plea of guilty or no contest to, regardless of adjudication, a felony under Chapters 409 (Medicaid offenses), 817 (theft or fraud) or 893 (drug offenses), Florida Statutes, or similar laws in other jurisdictions, unless the individual successfully completed a drug court program for the felony and provides proof that the plea was withdrawn or the charges were dismissed, or unless the sentence and any related period of probation for such conviction or plea ended:

– For first and second degree felonies, more than fifteen (15) years before the date of application;

– For third degree felonies, more than ten (10) years before the date of application, except for third degree felonies under Section 893.13(6)(a), Florida Statutes; and

– For third degree felonies under Section 893.13(6)(a), Florida Statutes, more than five (5) years before the date of application.

2. Has been convicted of, or entered a plea of guilty or no contest to, regardless of adjudication, a felony under 21 U.S.C. Sections 801-970 or 42 U.S.C. Sections 1395-1396 (federal Medicare & Medicaid offenses), unless the sentence and any subsequent period of probation for such convictions or plea ended more than fifteen (15) years before the date of application; or

3. Is listed on the OIG’s list of excluded individuals and entities.

This new legislation has the effect of reducing the period of time a health professional may be prohibited from holding a license because of a conviction for one of the enumerated felonies. Under the current law, there is a fifteen (15) year prohibition for all enumerated offenses. The new legislation, if signed, will reduce the period to as little as five (5) years for drug offenses.

However, it also broadens the reach of the current Florida law by including, for the first time, convictions under “similar laws in other jurisdictions.” This may now “catch” many to whom the Florida law did not previously apply.

HB 653 also allows individuals previously denied renewals under SB 1986 who at are now eligible for renewal to obtain a license without retaking and passing their examinations.

The latter requirement above, number 3, may present a “catch 22” for many health professionals. Usually, if a licensed health professional is convicted of a felony, loses his/her license or is denied renewal of a health professional’s license, this is reported to the National Practitioner Data Bank (NPDB). The NPDB now includes reports previously made to the Healthcare Integrity and Protection Data Bank (HIPDB). If this occurs, in most cases the Office of Inspector General (OIG) commences action to exclude the professional from the Medicare Program. This automatically places the health provider’s name on the OIG’s List of Excluded Individuals and Entities (LEIE). Therefore, most licensed health professionals, even if they are no longer prohibited from holding a license under numbers 1 and 2 above, may still be prohibited because of requirement number 3 above.

Doubtless, this lacuna (gap) in this legislation will require additional corrective legislation in the future.

To view a summary of HB 653, click here.

To view the Bill Analysis of HB 653 from the Health and Human Services Quality Subcommittee, click here.

To view the Bill Analysis of HB 653 from the Health Care Appropriations Subcommittee, click here.

To view the Bill Analysis of HB 653 from the Health and Human Services Committee, click here.

By The Health Law Firm|2024-03-14T10:01:55-04:00May 15, 2018|Categories: Board of Nursing, Department of Health, Nurse License|Tags: criminal charges, Florida law, Florida legislature, Florida Statutes, HB 653, health care fraud, health care license, healthcare providers, LEIE, List of Excluded Individuals and Entities, Medicaid fraud, medical license, Medicare fraud, National Practitoner Data Bank, npdb, nursing license, OIG|Comments Off

The 27 Biggest Mistakes Nurses Make in Department of Health Investigations

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

Following are the 27 biggest mistakes that we have seen nurses make over and over again that cause them the worst trouble in DOH investigations.

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 physician’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 IPN instructions.)

6. Providing a copy of the nurse’s curriculum vitae (CV) or resume to the investigator
because the investigator requested her 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. Will usually not apply to nurses bu may apply to ARNPs and nurse midwives.

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

11. Failing to submit correspondence and documents via certified mail, return receipt
requested, so that you have proof of mailing and proof of receipt.

12. Believing that the investigator has knowledge or experience in hospital procedures, nursing 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 your nursing malpractice insurance carrier will pay the legal fees to defend 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, that 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 the Board of Nursing for a decision.

20. Taking legal advice from their colleagues or employers 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. Retaining criminal defense attorneys, trial attorneys or other attorneys to represent them in such matters when that attorney does not have experience in appearing before the Board of Nursing in such cases (always ask the attorney how many time she or she has actually appeared before the Board of Nursing.)

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

24. Attempting to defend themselves.

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

25. Communicating with the Department of Health about the pending case.

27. 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.

By The Health Law Firm|2024-03-14T10:01:55-04:00May 15, 2018|Categories: Department of Health|Tags: administrative complaint, administrative hearing, board of nursing, defense attorneys, disciplinary action, doh, emergency suspension order, ESO, investigation, lawyers, legal representation, nurse, nurse license investigation, nurses, nursing license, voluntary relinquishment|Comments Off