Nurses: Don’t Work at an Illegal Health Care Clinic

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

Despite the passage of Florida’s Health Care Clinic Act over nine years ago, there are still many health practices which are violating it. Unfortunately, the violation of the Health Care Clinic Act can have serious repercussions, including conviction of a felony, loss of all fees collected, and disciplinary/licensure action against any nurses or other licensed health professionals working there.

Over the past three years we have seen the following scenarios or ones similar to these (changed factually to ensure anonymity):

Scenario 1: A health care practitioner licensed in Florida decides to sell her practice and retire. Three non-licensed business people decide to form a corporation to purchase and operate the practice. The corporation purchases the medical practice’s assets, including patient records. The corporation has not applied for or received a health care clinic license.

Results: On the day of closing or the day the practice is transferred to the new corporation, the corporation is operating illegally, in violation of Florida law. Each day of operation is a separate felony.

Scenario 2: A health care professional practices medicine through a limited liability company (LLC) which the he owns with his non-licensed wife. The health care professional dies and his wife remains sole owner of the practice, hiring a locum tenens physician to come in and treat patients.

Results: As of the date of death of the health care professional, the practice is operating illegally, in violation of Florida law. Each day of operations is a separate felony offense.

Scenario 3: A health care professional licensed in Florida operates a medical practice as a sole proprietorship. The health care professional desires to reward her practice manager, a non-licensed business person, by making him a partner in her practice. The practice continues to operate as before without a health care clinic license.

Results: The practice is operating illegally as of the day the practice manager is made a partner.

Scenario 4: A health care professional has a medical practice which he owns and operates through a business corporation which does not need or have a health care clinic license. He decides to relocate to another state. He sells the shares of stock to a medical doctor who is licensed in Georgia, but is not licensed in Florida. The new physician owner hires a medical doctor licensed in Florida to deliver all medical services in the Florida practice.

Results: The corporation, its owner, and the physician employee are operating illegally as of the date the shares in the corporation are transferred. Each day of operation constitutes a new offense.

The consequences of such actions are severe. The act provides that violating it constitutes a felony of the third degree for each day of operation. Any licensed health professional having knowledge of the unlicensed status of the practice or clinic and who does not immediately report it can be disciplined by his or her professional board. Any fees of any kind collected from any source, Medicare, Medicaid, insurers, or cash from patients, are considered illegal as a matter of law and are subject to recoupment or refund.

If you are a nurse or other licensed health professional, be sure you know who the actual owners of the medical practice are. If any are not licensed in Florida, inquire as to the existence of a current, valid health care clinic license from the Agency for Health Care Administration. If any doubt or suspicion, consult with an experienced health care attorney.

Don’t Wait Too Late;  Consult with an Experienced Health Law Attorney At the Onset of Any Issue

Do not wait until action has been taken against you to consult with an experienced attorney in these matters. It is much easier to win your case when there is proper time to prepare.

The attorneys of The Health Law Firm are experienced in representing nurses, nurse practitioners, and CRNAs in investigations, IPN matters and at Board of Nursing hearings.  Call now 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.

Florida Registered Nurses Finalize Union Agreement with HCA

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

Registered nurses at ten HCA hospitals in Florida have reached a collective bargaining agreement with the hospital chain. After negotiating for over a year, National Nurses United–a union for registered nurses–announced that it finalized the agreement with HCA on May 7, 2012.

The agreement affects over 3,000 Florida registered nurses at HCA hospitals. It will be effective for three years.

According to National Nurses United, Florida HCA management has agreed to establish a committee of elected nurses at each hospital to make recommendations on improving patient care. The contract also protects nurses against forced overtime and provides for a new wage system based on experience.

Milestone for Florida Nurses.

This collective bargaining agreement is a milestone for Florida nurses. It provides some degree of security and assurances of fairness to nurses before they can be terminated. Internal grievance procedures will have to be complied with by the employing hospital which will no longer be able to arbitrarily terminate a nurse.

Unionization Means Written Contract for Nurses.

This also means that nurses employed by the hospital will now have a written contract and will have contractual rights. Most nurses work as “at will employees” without a contract. This allows them to be fired for any (non-discriminatory) reason or no reason at all. This will prevent that from happening from now on.

This also has an advantage even for those nurses who are not union members. The labor contract will apply to them, too, giving them contract rights, as well.

Union Representative.

Although the union believes that the RNs covered by the new agreement will greatly benefit from it, there are often problems that arise from union negotiations that may not be initially apparent.

For example, the nurse employee will have the right to have a union representative present at any disciplinary proceedings, interviews, or investigations by the hospital employer. A nurse may feel that having a union representative present will ensure that his or her legal interests are protected. However, this is not always the case. A union representative will generally not do anything to jeopardize the union’s relationship with the employer. Additionally, the union representative is not a lawyer and often will not be able to provide legal strategy, legal advice, or good defenses to the nurse.

Union reps should never be mistaken for legal counsel. They will likely have no legal background and are not a substitute for an attorney.

Nurses Unfairly Accused of Diverting Narcotics.

This firm has heard from a number of nurses employed by hospitals across the state and regularly represents them. Often we are contacted by nurses who state that they are unfairly and incorrectly accused of diverting narcotics from patients or pilfering them from Pyxis, Diebold or ther brands of automated pharmacy dispensing systems. Many of these have been terminated by their employers even though their drug tests came back negative or they passed a polygraph examination (lie detector test).

When nurses are unionized and have contractual rights, this helps to end unfair and arbitrary terminations. Such abuses by hospital employers cause nurses to decide to vote in favor of unionization.

Contact Health Law Attorneys Experienced with Nursing Issues Today.

The attorneys of The Health Law Firm provide legal representation to nurses, nurse practitioners, and CRNAs in investigations, contract negotiations, licensing issues and at Board of Nursing hearings.  They also advise nurses wrongfully accused of diverting drugs and those wrongfully terminated from employment.  Its attorneys represent nurses in DOH investigations, Board of Nursing cases and 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.

Sources Include:

Dymond, Richard. “Nurses Win First Bargaining Contract with HCA’s Blake, Doctor’s Hospital.” Bradenton Herald. (May 8, 2012). From
http://www.bradenton.com/2012/05/08/4029914/nurses-win-first-bargaining-contract.html

Peters Smith, Barbara. Registered Nurses Reach Labor Agreement with 10 Florida Hospitals.” Herald-Tribune. (May 7, 2012). From
http://health.heraldtribune.com/2012/05/07/registered-nurses-reach-labor-agreement-with-10-florida-hospitals/

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.

Nurses: Did You Know You Have Fifth Amendment Rights in a Florida Department of Health Investigation Involving Your License?

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

If you are contacted by a Florida Department of Health investigator, did you know that you cannot be required to make a statement or give any information that can be used against you? If you are being investigated you have a right to refuse to speak with an investigator pursuant to the Fifth Amendment of the U.S. Constitution and the equivalent rights given by the Florida Constitution, Article 1, Section 9. Unfortunately, because the Miranda decision does not apply to administrative proceedings, including licensure investigations, the DOH investigator does not have to inform you of this.

In some states other than Florida, the state’s law is such that a nurse or other licensed health care professional is required to “cooperate” with the investigation, even though he or she may be punished or lose their license as a result. However, this is not the case in Florida.

Florida Nursing Licensing Investigations Are Considered to Be “Penal” or “Quasi-criminal” in Nature.

Florida nursing licensing (or any health care licensing) investigations are considered to be “penal” or “quasi-criminal” in nature. In Florida, a professional’s license is considered to be a property right. So you also have the constitutional right not to be deprived of it without due process of law. Due Process of law is guaranteed not only by the Florida and U.S. constitutional provisions cited above, but also by the Fourteenth Amendment of the U.S. Constitution. Due process of law includes the right to be represented by an attorney in any proceedings that might be initiated that may result in your losing your license.

In Florida, a long history of legal cases has resulted in the common law rule that administrative proceedings that may result in loss of a license must afford all of the protections that a criminal defendant would have in a criminal case.

Florida Case Law.

In a 2004 case involving the Florida Department of Health, the Florida First District Court of Appeal stated:

Initially, it should not be forgotten that because professional disciplinary statutes are penal in nature, they must be strictly construed with any ambiguity interpreted in favor of the licensee. See Ocampo v. Dep’t of Health, 806 So. 2d 633, 634 (Fla. 1st DCA 2002); Elmariah v. Dep’t of Prof. Reg., Board of Med., 574 So. 2d 164 (Fla. 1st DCA 1990).

Cone v. Dep’t of Health, 886 So. 2d 1007, 1011 (Fla. 1st DCA 2004).

The Florida Supreme Court confirmed that a licensee could assert a Fifth Amendment right in administrative proceedings in the 1973 case of State ex rel. Vining v. Florida Real Estate Commission, 281 So.2d 487 (1973).

In Vining a real estate broker was charged by the Florida Real Estate Commission of violating the Real Estate License Law. Id. at 488. The broker filed a sworn answer, as he was required to do under Florida Statute Section 475.30(1). Id. The broker later argued that the Florida statute violated his right against self-incrimination as guaranteed by the Fifth Amendment to the U.S. Constitution and Article I, Section 9 of the Florida Constitution. Id.

The Florida Supreme Court agreed, holding that “the right to remain silent applies not only to the traditional criminal case, but also to proceedings ‘penal’ in nature in that they tend to degrade the individual’s professional standing, professional reputation or livelihood.” Id. at 491 (citing Spevack v. Klein, 385 U.S. 511, 87 S.Ct. 625, 17 L.Ed.2d 574 (1967); Stockham v. Stockham, 168 So. 2d 320 (Fla. 1964)). More recently, courts have reaffirmed that Vining remains good law in Florida. See Best Pool & Spa Service Co., Inc. v. Romanik, 622 So. 2d 65, 66 (Fla. 4th DCA 1993); Scott v. Department of Professional Regulation, 603 So. 2d 519, 520 (Fla. 1st DCA 1992).

In Best Pool & Spa Service Co., Inc. v. Romanik, 622 So. 2d 65, 66 (Fla. 4th DCA 1993), for example, the Court of Appeal reiterated the ability of a defendant to claim the Fifth Amendment privilege in an administrative proceeding. Best Pool involved a pool owner filing actions for negligence and breach of contract against a pool maintenance contractor and its president. The circuit court required the president to answer questions at his deposition about his certifying to the county, in an application for license, that the contractor had liability insurance. The Court of Appeal ruled that the president was allowed to assert his Fifth Amendment privilege with regard to questions on this issue. The court stated in Best Pool: “requiring Kassover, the president, to answer these questions does violate his right against self incrimination, which applies not only to criminal matters but also administrative proceedings such as licensing. Id. at 66.

There are many other cases which have held the same.

Be Extremely Leery When Dealing with a DOH Investigator or Any Investigator.

If you receive notice that a DOH disciplinary investigation has been opened against you, you may not even realize it or understand how serious the consequences may be. The notice comes in the form of a simple letter or, more often nowadays, a phone call, followed by a letter. The letter will be on Florida Department of Health letterhead and will, in most cases, be signed by a person whose job title is “Medical Malpractice Investigator,” “Quality Assurance Investigator” or some other title that might throw you off.

If you think you are giving information to be used in connection with a true quality assurance matter, such as would be confidential and privileged in a hospital or health institution, think again. This is an investigation that could result in your having to pay thousands of dollars in fines, thousands of dollars in investigative costs and suspension or loss of your license. Worse yet are the other consequences that having discipline on your professional license will bring, including difficulty in obtaining employment, reports being made to national data banks, etc. Please see some of the other articles we have on our blog and on our website about all of the unforeseen consequences of discipline on your license.

Being Told the Investigation Is Not Aimed at You? Watch Out!

Even if the investigator attempts to ensure you that the investigation is not aimed at you, watch out! It may not be aimed at you today, but it may be aimed at you tomorrow. Additionally, even if the particular investigation that you are being questioned about is not directed against you, there may be another investigation that has been opened against you. Your statement can and will be sued against you in that other investigation.

I was told by a DOH investigator one time that my clients (who were a director of nursing (DON), assistant director of nursing (ADON), an administrator and a medical director) were not being investigated, but that another health professional was. My clients cooperated and gave statements for use in the investigation of the other person. A short time later, additional investigations were opened against all of them, too. Fortunately we eventually had all of the charges against all of them dismissed. But I have not trusted investigators since then.

Don’t Wait Until it is Too Late; Consult with a Health Law Attorney Experienced in Representing Nurses Now.

The lawyers of The Health Law Firm routinely represent nurses, ARNPs, CRNAs, home health agencies, nursing homes, assisted living facilities, and other healthcare providers in licensing investigations, regulatory matters, in board actions and in administrative hearings, including before the Board of Nursing. Call 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.

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

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.

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.

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.

Please, Please, Please Do NOT Talk to the Department of Health (DOH) Investigator

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

Whether you are a nurse, physician, pharmacist or dentist, I beseech you: please do not talk to a Department of Health (DOH) investigator until you have talked to a health lawyer who is experienced with DOH investigations and board licensing complaints.  Do not answer or respond to even the most basic questions about where you work now, what your address is or if you know patient x, until consulting with counsel.

Admitting to the Simplest Facts May Harm You.

We are routinely consulted by nursing professionals and other healthcare providers for representation after they have discussed the case and after it is too late to undo the damage they have caused to themselves.  Often they do not understand the seriousness of the matter or the possible consequences, until it is too late. Admitting to even the most basic facts causes damage to any possible defense.

Administrative Licensure Investigations are “Quasi-Criminal.”

The vast majority of nurses and even most attorneys do not realize that DOH investigations concerning complaints against a nurse’s licences are considered to be “penal” or “quasi-criminal” proceedings.  This means the same laws and constitutional rights apply to them as apply to criminal investigations.  However, since they are also administrative proceedings and not strictly criminal proceedings, investigators do not need to advise you of your Miranda rights or tell you you have the right to remain silent, the right to an attorney, etc.

In any criminal investigation a good criminal defense attorney would always tell you “Do not talk to the investigator” and “Tell the investigator you have a lawyer.”

Investigators’ Techniques Try to Get You to not Consult a Lawyer.

DOH investigators, like police investigators, FBI investigators and other law enforcement officers, are well-trained in investigative techniques and how to get information out of suspects.  Often the approach used is to catch you by surprise before you even know there is an investigation and the investigation is of you.  Another technique used is to lull you into a false sense of security that the investigation is about someone or something else and not you.  Another investigative technique is to convince you that you need to “Tell your side of the story” so that the investigation is accurate.  Yet another is that “Things will go much better for you if you cooperate.”  None of these things are true.

However, if it is truly in your best interest to cooperate or to make a statement, after you consult with your attorney, your legal counsel will surely advise you to do this.  The investigator should not mind waiting until you consult your attorney.  However, many will go to extremes to convince you that you don’t need an attorney and shouldn’t get an attorneys.

Consult an Experienced Health Law Attorney.

The attorneys of The Health Law Firm are experienced in dealing with DOH investigators, AHCA surveyors, Drug Enforcement Administration (DEA) agents, FBI agents, police and sheriff’s office investigators, OIG special agents (S/As) and Medicaid Fraud Control Unit (MFCU) investigators.  Call or contact The Health Law Firm for legal advice before you talk to any investigator about any matter.

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.

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.

Appealing Final Orders and Emergency Suspension Orders (ESOs)

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

George F. Indest III is Board Certified by The Florida Bar in Health LawThe professional boards for licensed health professionals in Florida, such as the Board of Nursing, are all under the Florida Department of Health (DOH).  Each board is responsible for disciplinary actions and other matters regulating the professions under its authority.  The investigators and attorneys assigned for Board of Nursing matters all work for or are assigned to the DOH.  The Florida DOH is headed up by the Florida Surgeon General.  I think of the DOH as the umbrella agency over the professional boards or as a parent corporation which owns many subsidiary corporations.

Administrative Procedures Governing Investigations and Disciplinary Actions

All agency actions, especially disciplinary actions and investigations, are governed by the Florida Administrative Procedure Act (APA), Chapter 120, Florida Statutes.  The Florida APA is modeled after the Federal Administrative Procedure Act.  However, in addition to the Florida APA, DOH investigations and hearings may also be governed by several different provisions of Chapter 456, Florida Statutes, a set of laws which govern all licensed health professionals.

For example, Section 456.073, Florida Statutes, gives certain procedural steps that must be followed in investigations and probable cause hearings involving complaints against nurses and other health professionals.  Section 456.073(13), Florida Statutes, is a new section added several years ago that provides a six (6) year “statute of limitations” for many disciplinary matters;  but there are many exceptions to this.

Section 456.074, Florida Statutes, gives the Surgeon General the authority to issue emergency suspension orders (or “ESOs”) in certain cases.  Section 456.076, Florida Statutes, authorizes the establishment of treatment programs for impaired health professionals and offers some alternatives to disciplinary action.  To date, the only recognized programs are the Intervention Project for Nurses (IPN) (which covers all nursing professionals) and the Professionals Resource Network (PRN) (which covers almost all other health professionals).  Section 456.077, Florida Statutes, authorizes nondisciplinary citations for certain offenses.  Section 456.078, Florida Statutes, authorizes mediation for certain offenses.

Mistaken Advice Regarding Appeals

We are often consulted by nurses after they have an emergency suspension orders (or ESOs) entered against them or after they have a Final Order for disciplinary action entered against them.  We often hear that they consulted an attorney who advised them at an earlier stage of the proceedings to not worry about putting together and presenting a defense or disputing the charges at a formal administrative hearing.  We are told that they have been mistakenly advised that they should just wait and file an appeal because they are more likely to win on appeal.

This is, of course, incorrect advice.  If you compare these proceedings to criminal investigations, would any competent attorney advise you to not worry about preparing for a trial or contesting the charges at a trial?  Would any competent attorney advise you to just wait until you are convicted, because you could then file an appeal?  No, of course not.  This is because appeals are based on legal defects in the proceedings and do not involve any presentation of new facts that are not already in the record.  Additionally, very few cases are reversed on appeal, whether criminal, civil or administrative in nature.  So why give up your best shots at winning a case:  presenting a good case of factual information and documents at the investigation level or disputing the charges at a formal hearing?

Don’t Try to Be Your Own Attorney on an Appellate Matter

There are, of course, many valid legal grounds for appeals of emergency suspension orders (ESOs) and Final Orders.  However, you have to understand the law and the procedural rules that govern such matters in order to be able to identify them and argue them on appeal.  In addition, appellate law is a legal specialty of its own.  If you are not familiar with researching case law and writing legal briefs, you should not be attempting to appeal your own case.  Would you attempt to perform brain surgery on yourself?  If so, you should get your head examined.  The courts of appeal are far more exacting in their requirements than trial courts are. See The Florida Rules of Appellate Procedure.  However, most Florida courts of appeal also have their own local rules which may apply to appeals.

Grounds for appeal of an Emergency Suspension Order (ESO) include that less restrictive means of protecting the public were available or that the conduct alleged does not meet the legal requirement for imposing such a suspension.  Grounds for appeal of a Final Order include that the punishment it gives exceeds the disciplinary guidelines that each board has and that proper procedures were not followed which deprived the respondent of his or her right to a fair hearing.  There are many other grounds which one who practices regularly before the Board will be able to identify and raise in an appeal.

Where to Appeal May Be an Issue

The notice of appeal must be filed with the clerk of the DOH.  However, a copy must also be filed with the appropriate appellate court having jurisdiction.  The First District Court of Appeal in Tallahassee will have jurisdiction in almost all DOH and Agency for Health Care Administration (AHCA) appeals.  However, the District Court of Appeal which has jurisdiction over the county in which the respondent health professional resides will also have jurisdiction.  If the appellate case law of one of these is more favorable than the other, from a strategic viewpoint, it may be better to file in the one with the more favorable case law.

Alternative Actions to an Appeal May be Appropriate

Furthermore, there may be more effective and less expensive methods of obtaining relief from an emergency suspension orders (ESOs) or Final Order than an appeal.  If you are subject to an emergency suspension orders (ESOs), you have the right to an expedited hearing.  Sometimes this will result in quicker relief than appealing it.  If you are subject to a Final Order that has been issued in error or there was some mistake in the proceedings that led up to it, the Board may be inclined to reconsider the matter and amend it.

Always Carry Professional Liability Insurance that Includes Licensure Defense Coverage

We continue to recommend that all nursing personnel, especially those who work in hospitals, nursing homes or for agencies, carry your own professional liability insurance.  If you do purchase insurance, make sure it has professional license defense coverage that will pay for your legal defense in the event a complaint is filed against your nursing license.  Usually coverage of up to $25,000 comes with most good nursing liability policies.  There are many companies that sell such insurance for as little as $150 per year.  However, if you can get additional coverage, $50,000 is more likely to cover any foreseeable investigations, hearings and appeals.

Seek Legal Advice and Prepare Your Defenses Early

Always seek legal advice as soon as you suspect there may be a complaint of any kind or an investigation of any kind.  Don’t hide your head in the sand and think that the investigation could not possibly be about you.  Talk to an attorney before you talk to anyone else.  A good attorney will help to save you from making mistakes that could compromise a good legal defense.

Call now or visit our website www.TheHealthLawFirm.com. to set up a consultation on any of the above issues.

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.

Disclaimer:  This article is for general information and education purposes only and must not be regarded as legal advice.

Copyright © George F. Indest III, Altamonte Springs, Florida, all rights reserved.  No part of this article may be reproduced or used without the permission of the author and owner.

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

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.

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.

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.

Preparing for an Informal Hearing Before the Board of Nursing

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

If you are scheduled to appear for an informal hearing before the Florida Board of Nursing, there are a number of facts that you will want to know in order to be properly prepared.  This article will cover many of them.

Limited Circumstances for Informal Administrative Hearing

First, you should understand that you will only be at an informal hearing in which you appear before the Board of Nursing itself for a very limited number of reasons.  These will include the following:

  1. If you completed an election of rights (EOR) form and agreed that you did not intend to dispute any material facts alleged against you from the administrative complaint (AC) in the case.
  2. If you entered into a settlement agreement (or “stipulation”) (similar to a plea bargain in a criminal case) in which you agreed to accept discipline against your license.
  3. You failed to submit any election of rights (EOR) form and failed to file a petition for a formal hearing in a timely manner, and, therefore, you have waived your right to a formal hearing.

There are a few other circumstances in which there may be an informal hearing before the Board, such as motions to modify a final order, motion to lift a suspension of a license, appearance in accordance with an earlier order, petition for a declaratory statement, or other administrative matters.  This article only discusses those directly relating to disciplinary action as indicated above.

What an Informal Administrative Hearing Is Not

  1. An informal administrative hearing is notan opportunity for you to tell your side of the story.  You have agreed that there are no disputed material facts in the case or you would not be at an informal hearing.
  2. An informal administrative hearing is not an opportunity for you to prove that you are innocent of the charges.  You have agreed that there are no disputed material facts in the case or you would not be at an informal hearing.
  3. An informal administrative hearing is notan opportunity for you to introduce documents or evidence to show that someone else committed the offenses charged and you did not.  You have agreed that there are no disputed material facts in the case or you would not be at an informal hearing.
  4. An informal administrative hearing is not an opportunity for you to argue that you should not be in the board’s impaired practitioners program (either the Professionals Resource Network (PRN) or the intervention Project for Nurses (IPN)) because you have completed a different program or that you do not have a problem.  These are the only programs recognized and used and you have agreed that there are no disputed material facts in the case or you would not be at an informal hearing.

Formal Administrative Hearing vs. Informal Hearing

If you desire to contest the facts alleged against you then you must state this in writing.  If the material facts in a case are challenged by you, then the Board or the Department of Health (DOH) (note:  all professional boards are under the Department of Health in Florida) must forward your case to the Division of Administrative Hearings (DOAH) where a neutral, objective administrative law judge (ALJ) will be appointed to hold a formal hearing in your case.  This is the only way that exists for you to prove that the facts alleged against you are incorrect or that you are not guilty of the charges made against you.  In fact, you do not even have to do anything in such a case.  The Department of Health has the burden of proof and it has to prove the charges against you and the material facts alleged against you by clear and convincing evidence.  Often, it is unable to do this at a formal administrative hearing.

However, because of the technicalities of evidentiary law and administrative law, we do not recommend that a nonlawyer attempt to represent himself or herself at such hearings.  You can make technical mistakes (such as answering requests for admissions incorrectly) that severely compromise any defense you may have.  We recommend that you always retain the services of an experienced health lawyer in any such matter.

What to Do If You Find That You Are at an Informal Hearing and That You Do Desire to Contest the Material Facts of the Case (And Your Guilt or Innocence)

If you have been scheduled for an informal administrative hearing and you decide that you do desire to challenge the material facts alleged against you in the administrative complaint (AC), file a written objection to proceeding at the informal hearing.  State that you have discovered that there are material facts that you do desire to challenge and that you desire that the proceedings be converted to a formal hearing.  File this with the Clerk of the administrative agency you are before (usually the department of health or the Agency for Health Care Administration (AHCA) and also send a copy to the opposing attorney and the executive director of the Board.  Do this as early as possible and keep proof that you have actually and filed the written request.

If you are already at the informal hearing when you discover this, object to the proceedings on the record and ask to have the informal hearing be converted to a formal hearing where you may contest the material facts.  State this as many times as reasonably possible.

Preparing for an Informal Hearing

Since you are not contesting the facts alleged against you, if you are going to an informal hearing be sure you do the following:

  1. Be sure you know where the hearing is going to be held.  Try to stay the night before in the same hotel as the hearing will be held.  You will usually have to make these reservations early in order to get a room.
  2. Attend a Board meeting that occurs before the one at which your case is scheduled.  This will give you a feeling for the procedures that will be followed, will help to make you less nervous when you appear, and you can obtain continuing education units for doing so (be sure to sign in and sign out).  Be sure to attend one of the days when the disciplinary hearings are held.
  3. Dress professionally for the appearance.  This may be the most important event in your professional career.  For men, this means a suit and tie or, at least, a dark coat, dark slacks and a necktie.  For women, a professional business suit or the equivalent is in order.  Do not dress as if you are going to the park, the beach or out on a date.  Do not wear sexually provocative or revealing clothing.
  4. Check the agenda that is published on line a day or two before the scheduled hearing to make sure that your case is still scheduled for the date and time on the hearing notice.  Informal hearings may be moved around on the schedule.  Make sure you are there at the earliest time on the hearing notice or agenda.
  5. Listen to questions asked of you by Board members and attempt to answer them directly and succinctly.  You will be placed under oath for the proceeding and there will be a court reporter present as well as audio recording devices to take everything down.
  6. Do not argue with the Board members or lose your temper.  This is not the time or place to let this happen.  If you have such tendencies, then you should have an attorney there with you who can intercept some of the questions and can make defensive arguments (to the extent that they may be permitted) for you.
  7. You may introduce documents and evidence in mitigation.  However, you have agreed that the material facts alleged are true, so you may not contest these.  In effect, you have plead guilty and you are just arguing about how much punishment (discipline) and what kind of punishment you should receive.
  8. If you do intend to introduce documents and evidence in mitigation, be sure you know what the mitigating factors are (these are published in a separate board rule in the Florida Administrative Code for each professional board).  These may include, for example, the fact that there was no patient harm, that there was no monetary loss, that restitution has been made, the length of time the professional has been practicing, the absence of any prior discipline, etc.  You should submit these far ahead of time with a notice of filing, so that they are sent out to the board members with the other materials in your file.  This is another reason to have experienced counsel represent you at the informal hearing.
  9. Be prepared to take responsibility for your actions.  If you are not prepared to take responsibility, then this means you must believe you are innocent and you should be at a formal hearing, not an informal one.
  10. Be prepared to explain what went wrong, why it went wrong, and what remedial measures you have taken to prevent a recurrence of this type of event in the future.  Show that you have learned from this experience and that you are not going to make the same mistake again.
  11. It is our advice to always retain the services of an experienced attorney to represent you at such hearings.  Often your professional liability insurance will cover this.  If you have professional liability insurance, be sure that it contains a rider or addendum that provides coverage for professional license defense matters and administrative hearings.  You need at least $25,000 to $50,000 in coverage for this type of defense.  If necessary, you should contact your insurer or insurance agent and have the limits increased for a small additional premium

Other Little Known Facts to Remember

Professional licensing matters are considered to be “penal” or “quasi-criminal” in nature.  Therefore, you have your Fifth Amendment rights in relation to being required to give evidence against yourself.  You cannot be compelled to do this in such matters.  However, since it is an administrative proceeding and not a criminal proceeding, there is no requirement that the licensee be advised of this by a DOH investigator or attorney.

If you enter into a settlement agreement and attend the informal hearing to approve it, nothing you say or testify to at this hearing can later be used against you.  This is because you are involved in an attempt to negotiate and settle (or compromise) the claims being made against you.  It is a general rule of law that nothing the parties say in such settlement proceedings can later be used as evidence if the settlement agreement is not approved.  The law tries to promote settlements among parties to any dispute in this way.

It is true that on occasion the Board will examine a case on an informal hearing and will decide to dismiss it.  This is rare, but it does happen.  Sometimes, it will be a tactical decision on the part of you and your attorney to elect to go to an informal hearing with the hope that the Board may examine the case and decide to dismiss it.  However, you cannot count on this happening.

Don’t Wait Too Late;  Consult with an Experienced Health Law Attorney Early

Do not wait until action has been taken against you to consult with an experienced attorney in these matters.  Few cases are won on appeal.  It is much easier to win your case when there is proper time to prepare and you have requested a formal hearing so that you may actually dispute the facts being alleged against you.

The lawyers of The Health Law Firm are experienced in both formal and informal administrative hearings and in representing nurses, nurse practitioners, and CRNAs in investigations and at Board of Nursing hearings.  Call now 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.comThe Health Law Firm, 1101 Douglas Ave., Altamonte Springs, FL 32714, Phone:  (407) 331-6620.