By George F. Indest III, J.D., M.P.A., LL.M., Board Certified by The Florida Bar in Health Law
Do you have a medical, pharmacist, counselor, or nursing license in more than one state? Do you have a license in more than one profession? Have you been notified that an investigation has been opened against your professional license? Are you thinking about resigning your professional license or voluntarily relinquishing (giving up) your license? Then you should be aware of some important facts you may not have known.
First, you should never voluntarily relinquish or resign your professional license after you know that an investigation has been opened or that disciplinary action has been taken against you. A resignation is considered to be a “disciplinary relinquishment” and is treated the same as if your license had been revoked on disciplinary grounds.
Second, this will be reported to other states, professional agencies, the National Practitioner Data Bank (NPDB), and to any certifying bodies for certifications you have. It will also be reported to other national professional bodies (such as the National Council of State Boards of Nursing, the National Association of Boards of Pharmacy, or the American Board of Internal Medicine). Other states and other professional boards will most likely initiate disciplinary action based on the report of the first one.
Protect Your License from These Types of Adverse Actions.
Following is a list of some of the adverse actions you can expect to be taken after discipline on your license (or if you give up your license after receiving notice of investigation):
1. A mandatory report to the National Practitioner Data Base (NPDB) which remains there for 50 years. Note: The Healthcare Integrity and Protection Data Bank HIPDB have now merged into the NPDB.
2. The action must be reported to and included in the Department of Health (DOH) profile that is available to the public online (for those having one) and remains for at least ten years.
3. Any other states or jurisdictions in which the professional has a license will also initiate an investigation and possible disciplinary action against him or her in that jurisdiction. (Note: I have had two clients who had licenses in seven or more other states; even states where the license was no longer active initiated action).
4. The Office of the Inspector General (OIG) of the U.S. Department of Health and Human Services (HHS) will take action to exclude the provider from the Medicare Program. If this occurs (and many of these offenses require mandatory exclusion) the provider will be placed on the List of Excluded Individuals and Entities (LEIE) maintained by the HHS OIG.
a. Note that if this happens, you are prohibited by law from working in any position in any capacity for any individual or business, including hospitals, nursing homes, home health agencies, physicians, medical groups, insurance companies, etc., that contract with or bill Medicare or Medicaid. This means, for example, you are prohibited from working as a janitor in a nursing home that accepts Medicare or Medicaid, even as an independent contractor.
b. Also, if this happens, you are also automatically “debarred” or prohibited from participating in any capacity in any federal contracting, and you are placed on the U.S. General Services Administration’s (GSA) debarment list. This means you are prohibited by law from working in any capacity for any government contractor or anyone who takes government funding. This applies, for example, to prevent you from being a real estate agent involved in selling property financed by a government-backed loan, prohibited from working for an electrical company that bids on contracts for government housing projects, working as a school teacher in a public school, etc.
c. Additionally, if this happens, your state is required to terminate you “for cause” from the state Medicaid Program. In many states, this will also be an additional ground for revocation of your license.
5. Any profile or reporting system maintained by a national organization or federation (e.g., NURSYS profile maintained by the National Council of State Boards of Nursing, American Medical Association physician profile, or the Federation of State Board of Physical Therapy profile) will include the adverse action in it, generally available to the public.
6. If you are a nurse practitioner or other professional with clinical privileges at a hospital, nursing home, HMO, or clinic, action will be taken to revoke or suspend the clinical privileges and staff members if you have such. This may be in a hospital, ambulatory surgical center, skilled nursing facility, staff model HMO, or clinic. This will usually be for physicians, physician assistants (PAs), advanced registered nurse practitioners (ARNPs), certified registered nurse anesthetists (CRNAs), nurse midwives, or certified nurse anesthetists (CNAs), podiatrists, clinical psychologists or clinical pharmacists.
7. Third-party payors (health insurance companies, HMOs, etc.) will terminate the professional’s contract or panel membership with that organization.
8. The U.S. Drug Enforcement Administration (DEA) will act to revoke the professional’s DEA registration if he or she has one.
9. Many employers will not hire you or will terminate your employment if they discover your license has been disciplined in another state.
What Should and Shouldn’t You Do?
If you find yourself notified that you are under investigation, don’t take the easy way out by immediately relinquishing your license. Don’t hide your head in the sand by thinking the case will just go away on its own. Do not request an informal hearing or a settlement agreement in which you admit the facts alleged against you are all true. If you do this, you are “pleading guilty.” If you are innocent of the charges, request a formal hearing and contest the charges; defend yourself.
Do immediately seek the advice of an attorney who has experience in such professional licensing matters and administrative hearings. They are out there, but you may have to search for one. Do this as soon as you get notice of any investigation and especially before you have talked to or made any statement (including a written one) to any investigator.
Do purchase professional liability insurance that includes legal defense coverage for any professional license investigation against you, whether it is related to a malpractice claim or not. This insurance is cheap and will provide needed legal assistance at the time when you may be out of a job and not have money to hire an attorney. Beware of the insurance policy that only covers professional license defense if it is related to a malpractice claim.
Professional Liability Insurance.
We strongly encourage all licensed health professionals and facilities to purchase their own, independent insurance coverage. Make sure it covers professional license defense under all circumstances. Make sure you have enough coverage to actually get you through a hearing. $25,000 coverage for just professional licensure defense is the absolute minimum you should purchase; $50,000 may be adequate but $75,000 or $100,000 may be what you really need in such a situation. For a few dollars more (and I do mean only a few) you can usually purchase the higher limits.
Also, I will repeat, make sure it covers your legal defense in an administrative disciplinary proceeding against your license, even if there is no malpractice claim filed against you or likely to be filed against you.
We also recommend that you purchase coverage through an insurance company that allows you to select your own attorney and does not make you use one that the insurance company picks for you.
Companies we have encountered in the past that provide an inexpensive top quality insurance product for professional license defense costs include CPH & Associates Insurance, Nurses Service Organization (NSO) insurance, Healthcare Providers Organization (HPSO) Insurance, and Lloyd’s of London Insurance.
To learn more, visit our Video Q&A section on our website and watch our video titled, “Should I voluntarily relinquish my professional license because I am being investigated?” Additionally, click here to read one of our prior blogs for even more information on how to fight back against adverse NPBD reports.
Contact Health Law Attorneys Experienced with Investigations of Healthcare Professionals.
The attorneys of The Health Law Firm provide legal representation to medical professionals in Department of Health (DOH) investigations, licensing matters, and other types of investigations of health professionals and providers. To contact The Health Law Firm, please call (407) 331-6620 or Toll-Free at (888) 331-6620 and visit our website at www.TheHealthLawFirm.com.
About the Author: George F. Indest III, J.D., M.P.A., LL.M., is Board Certified by The Florida Bar in Health Law. He is the President and Managing Partner of The Health Law Firm, which has a national practice. Its main office is in the Orlando, Florida, area. www.TheHealthLawFirm.com The Health Law Firm, 1101 Douglas Avenue, Suite 1000, Altamonte Springs, FL 32714, Phone: (407) 331-6620 or Toll-Free: (888) 331-6620.
“The Health Law Firm” is a registered fictitious business name of and a registered service mark of The Health Law Firm, P.A., a Florida professional service corporation, since 1999.
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By Michael L. Smith, R.R.T., J.D., Board Certified by The Florida Bar in Health Law
By George F. Indest III, J.D., M.P.A., LL.M., Board Certified by The Florida Bar in Health Law