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.