Tips, Pointers and Reminders for Administrative Hearings

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

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

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

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

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

Our Tips, Pointers and Reminders for Administrative Hearings.

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

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

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

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

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

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

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

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

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

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

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

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

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

Contact Health Law Attorneys Experienced in Representing Nurses Administrative Hearings.

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

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

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

Preparing for a Deposition for Nurses

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

With the number of personal injury and healthcare-related lawsuits increasing each year, at some time in your professional career as a nurse, you will receive a subpoena requiring you to give an oral statement at a deposition. Having your deposition taken can be a stressful or even a scary experience. Following the few simple tips set forth in this chapter can make your deposition experience less stressful and hopefully relieve your feelings of anxiety.

Before the Deposition 

1. Be Prepared -You should prepare yourself for your deposition by familiarizing yourself with the chart or other medical records at issue in the lawsuit, unless your attorney instructs you otherwise. You should be prepared to answer general knowledge questions regarding the issues involved in the lawsuit. The examining attorney does not expect an in depth medical response; however, using some medical terminology may add to your credibility as a professional. Again, it is imperative that you realize your role in the case prior to deposition in order to assist in your preparation. If you have used certain medical terms in your nurse’s notes or medical record be sure you know exactly what they mean. If you used an abbreviation, be sure you know what it means.

2. Contact Your Attorney and Demand a Preparation Meeting – If you work in a hospital, you can probably expect the hospital’s attorney to conduct a predeposition conference to familiarize you with the plaintiff’s theory of the case when a hospital is being sued as an employer. Keep in mind that this attorney is not your attorney, but is your employer’s attorney; therefore, you may wish to retain a board certified healthcare attorney or a litigation attorney to be “on your side” for the deposition. If you are not contacted several weeks prior to your deposition regarding preparation for it, call your attorney and demand an appointment no later than one week prior to the deposition. This will give you time to meet with the attorney, learn about the issues involved in the suit, learn more about your role in the lawsuit, time to reschedule the meeting or have a follow-up meeting and time to relax before your deposition. Ask your attorney if he or she has a videotape of other depositions (from a different case) or a training videotape for you to watch. A training videotape can be particularly useful if you have never been deposed before. If your attorney does not conduct a pre-deposition conference with you, you are not receiving proper legal representation. Ask for a new attorney who has the time to properly prepare you for your deposition.

3. Ask If You Can Sit in on Other Depositions Before Yours – Although this may not be permitted in some cases, in many cases it will be. Consult with your attorney.

4. Do Not Discuss the Case With Others – Never discuss the case with others, unless your attorney is present or advises you it is ok to do this. If anyone tries to talk to you about the case, do not. If anyone asks you questions about the case, immediately advise them you have an attorney and that person should speak with your attorney.

5. Visit the Location of the Deposition – Unless the deposition will be held in your hospital or office, drive to the location where it will be held ahead of time and check out the parking situation. If you do this, you will not be rushed or late on the day of the deposition.

6. Pick Out Your Deposition Clothes – Pick out and prepare your deposition clothes prior to the deposition.

7. Obtain and Review Your Employer’s Medical Abbreviations List – If you work for a hospital, facility or group that has a “standard medical abbreviations list,” obtain it and review it. Check the records you wrote (after consulting with your attorney) to see if you used any incorrectly; if you did use an abbreviation incorrectly, be prepared to explain what you meant and why you used the abbreviation.

At the Deposition

1. Dress Professionally – As a general rule, unless your attorney advises you that it is okay to wear a nursing uniform, wear your best professional suit or “church clothes.” Regardless, be sure that your clothes are freshly cleaned and not in need of tailoring or repair. If in doubt, take what you plan to wear to your pre-deposition meeting with your attorney.

2. Do Not Be Intimidated – In some cases, an examining attorney will attempt to harass or intimidate a deponent during a deposition. If you have your own attorney present, she or he will attempt to curtail these types of tactics. If you begin to feel pressured, pause and take a breath before you begin your answer. Answers that are not thought out are the answers that the examining attorney will use to destroy your credibility as a witness.

3. Tell the Truth – When being deposed, you are under a sworn oath to tell the truth. Therefore, it is of the utmost importance that you give only truthful information to the deposing attorney. The truth is the easiest to remember and will help you deal with any psychological intimidation or other tactics that a hostile interrogating attorney might use. Harassment usually occurs when the attorney thinks that the witness is deliberately misstating or withholding relevant facts. Keeping your answers truthful may help reduce this type of behavior by the examining attorney.

4. Give Direct Answers – Give direct, straightforward responses without rambling or exaggerating and without volunteering information that was not requested. It is easy to be mislead into “telling all” by a friendly opposing attorney. Keep in mind that the deponent is only required to give knowledge that he or she personally has. If you do not know the answer to the question, you should state that you do not have personal knowledge of the information being asked. Remember, when an attorney for the other side is asking questions, the best answer is the shortest truthful answer. The best answer will usually be: “Yes,” “No,” “I don’t know,” or “I don’t recall.” If one of these answers applies, use it. Do not volunteer information. Additionally, do not guess the answer to the question. Similarly, do not state your opinion; give only facts of which you have personal knowledge. Keep your answers honest, straightforward and direct.

5. Listen Carefully – It is important that the deponent listen very carefully to the question asked by the attorney. Many times, attorneys do not prepare questions or rehearse questions in preparation for a deposition. As a result, some of the questions asked by the deposing attorney may be poorly worded, confusing or may be asked in many parts. Give only the answer to the question asked.

6. Ask the Attorney to Rephrase or Reask the Question – The questions asked should be completely understood. If you have listened carefully and you are asked a question that you do not understand, it is proper and appropriate to request that the attorney rephrase the question. You should not feel anxious or embarrassed to request that the question be rephrased.

7. Only Answer Questions Within Your Scope of Work – In some cases, you may be asked medical questions that are outside your knowledge or scope of practice. It is certainly appropriate for you to say that you do not know the answer to the question or that the information is beyond your knowledge as a nurse. You should not answer questions involving subjects about which you are not knowledgeable. It is also proper to state if you do not remember the answer to a question.

8. Stay Calm – While being deposed, attempt to stay calm, relaxed and composed throughout the deposition. This type of behavior will enhance your credibility as a witness. You should not be concerned with how your answers will affect others involved in the lawsuit. Be sure to take your time in answering the questions asked. You should not feel rushed to answer the questions; after all, the attorney deposing you subpoenaed you for the deposition.

9. Speak Clearly – Speaking clearly will also aid you in the deposition. A court reporter is recording everything you are saying. Therefore, you must orally answer every question. It will also assist to curtail rambling if you remember that a court reporter is recording every word you speak.

10. Be Polite – Being polite and cooperative can only help your position. Even though an attorney may attempt to intimidate you, being polite and cooperative will hinder his ability to make you feel uncomfortable.

11. Never Lose Your Temper – Never lose your temper or allow yourself to lose control. Some attorneys will try to get you to do this so you will say something without thinking.

12. No Joking – Do not laugh or joke around immediately before, during or after a deposition. This is a serious matter. Treat it seriously. Never relax your guard around the opposing attorney. He is not your friend.

13. Pause Before Answering – Pause two seconds before you answer each question. This will give you time to think. This will also give your attorney time to object if the question is improper.

14. Stop Immediately if Someone Else Speaks – If anyone else starts to speak, stop talking immediately. If your attorney objects, listen very carefully to the objection. Your attorney may be trying to tell you something.

After your Deposition 

After being deposed, if you made any mistakes in your deposition or later remember an answer, notify your attorney immediately. It is probably not too late to correct it.

You have the right to obtain a copy, check and change any errors or mistakes (even ones you made) in the typed transcript of the deposition. Never waive your right to obtain a copy and read the deposition transcript (unless your attorney has advised you of a good reason to do this before the deposition). Demand that you receive a copy of the transcript so you can review it prior to your later testimony at the trial (which may be years later). Always demand a copy of the transcript with all of the exhibits attached to it.

You have the right to review the entire transcript, correct any typographical errors or any erroneous statements you may have made and file these corrections with the transcript. You can only do this if you exercise your right as a deponent to “read and sign the transcript.” This is very important. Never agree to waive “reading and signing” unless you have discussed it with your attorney before the deposition and you have received a good reason you should do this.

If you will be called as a witness at the trial or in a related case, always review the transcript of your deposition twice, once approximately one week before and again the night before you testify.

Again, until the entire case is over and finalized (only your attorney can tell you when this is), do not discuss the case with anyone else.

Contact Health Law Attorneys Experienced in Representing Nurses at Depositions.

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

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

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

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.

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.

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.