How Can I Tell Whether or Not My Attorney Knows Anything about Florida Board of Nursing or Disciplinary Cases?

indest1By George F. Indest III, J.D., M.P.A., LL.M., Board Certified by The Florida Bar in Health Law

Hiring an attorney can be intimidating and costly. However, hiring representation for a Florida Board of Nursing or disciplinary case is an investment in your future and career. An experienced attorney is indispensable for preparing and defending your case. But how do you know if your representation is knowledgeable in health law?

Below are some examples of what an experienced attorney will not say to a nurse about his or her Board of Nursing or disciplinary case. Remember, if you hear any of the advice below, the attorney most likely has limited or no experience in this area of legal practice.

1. Your attorney tells you that you can argue your case to the Board of Nursing.

Reason:

You cannot “argue your case” in front of the Board of Nursing. If you are at a hearing before the Board of Nursing, it is because you have requested an “informal hearing.”

If you have requested an “informal hearing” this means you do not dispute any of the facts alleged against you in the Department of Health (DOH) complaint. If you are not disputing the facts, this means you are agreeing that you are guilty. If you are at a hearing in front of the Board of Nursing, you will not be allowed to argue that you are not guilty, and you will not be allowed to call any witnesses or introduce any documents. You are only there for the purpose of determining how much punishment the Board will give you and this is based on guidelines that the Board has previously enacted.

2. If your attorney tells you that he or she does not intend to submit any information or documents for consideration by the Probable Cause Panel (PCP) of the Board of Nursing.

Reason:

Many cases are dismissed by the Probable Cause Panel (PCP) and this is the easiest, most expedient, and least expensive way of winning your case. However, your presentation (written only) that is submitted to the PCP must be direct, concise, directly address the legal issues, and be well organized. It is not advisable to try to prepare this yourself. We often include affidavits from our own expert witnesses that have reviewed the case. If the PCP does not vote in favor of probable cause, the case is dismissed and closed. It is like it never happened. There is no record kept of the initial complaint.

The PCP of the Board of Nursing consists of between two and four members. Some of these can be laypersons with no experience in your area of healthcare. A majority has to vote and decide that there is probable cause. Therefore, if there are only two members, and you convince one that you did not do it, then there is no probable cause.

In my opinion, this is the best and quickest way to win your case, but you must know what you are doing. There are exceptions to every rule.

3. If your attorney tells you to meet with the DOH investigator or to give a statement (written or oral) to the investigator, especially without being present or preparing you.

Reason:

DOH investigators are similar to police. If you give them any statement, this can be used to prove the case against you. In most cases, you never want to do this. Although there may be a rare exception, we strongly advise the client against this in about 99% of the cases we handle.

Even if you believe that you are totally innocent, your former employer, the unhappy patient who reported you, or the DOH prosecuting attorney may be convinced that you are not innocent and recommend that charges are prosecuted against you. Exhibit 1 used against you at a hearing will be your own statement. The first witness the DOH prosecutor will call to testify will be you.

Be smart in such matters. Don’t think you can just explain the case away. Don’t give evidence that can be used against you. It is not required under Florida law, and you cannot be compelled to do this.

4. If your attorney says you should call and negotiate with the DOH attorney, or PRN/IPN case manager.

Reason:

As discussed above, anything you say can and will be used against you. This is one of the main reasons you should retain an experienced attorney: to act as a buffer between you and the legal system, to protect you, and shield you from mistakes you make that could hurt your defense.

Additionally, if your attorney is not much more familiar with the DOH and the PRN/IPN procedures than you are, then why have you hired him or her?

5. If your attorney tells you not to worry about the hearing, you can later appeal.

Reason:

Only about 20% of cases are won on appeal. On appeal, the Court of Appeal is limited to the record of the hearing that was held. You are not allowed to reargue the facts in an appeal. You are limited to arguing about legal errors that were made during the hearing. If you don’t know the law, you are unable to effectively appeal.

6. If your attorney tells you that he or she can represent you during the investigation but is unable to “try” your case at an administrative hearing.

Reason:

Representation only through the PCP hearing stage simply is not enough. An attorney should have sufficient knowledge, experience, and skill to represent you throughout the entire case. If he or she does not, and formal administrative charges are recommended by the PCP, you will then need to retain a completely new attorney who will need time, effort, and legal fees to learn your case in order to properly represent you.

Additionally only an attorney who has experience in litigation cases against the DOH and your professional board will have the credibility and experience to negotiate the most favorable deal for you if you later desire to settle the case.

Consult With An Experienced Health Law Attorney.

We routinely provide deposition coverage to registered nurses (RNs), advanced registered nurse practitioners (ARNPs), certified registered nurse anesthetists (CRNAs), licensed practical nurses (LPNs), nurse midwives and nurse practitioners and other health professionals being deposed in criminal cases, negligence cases, civil cases or disciplinary cases.

The lawyers of The Health Law Firm are experienced in both formal and informal administrative hearings and in representing registered nurses (RNs), advanced registered nurse practitioners (ARNPs), certified registered nurse anesthetists (CRNAs), licensed practical nurses (LPNs), nurse midwives and nurse practitioners in investigations 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. http://www.TheHealthLawFirm.com The Health Law Firm, 1101 Douglas Ave., Altamonte Springs, FL 32714, Phone: (407) 331-6620.

“The Health Law Firm” is a registered fictitious business name of George F. Indest III, P.A. – The Health Law Firm, a Florida professional service corporation, since 1999.
Copyright © 1996-2014 The Health Law Firm. All rights reserved.

Nurses: Contact The Health Law Firm for Representation in Last Minute Depositions and Hearings

5 Indest-2008-2By George F. Indest III, J.D., M.P.A., LL.M., Board Certified by The Florida Bar in Health Law

We often receive calls from health professionals, including registered nurses (RNs), advanced registered nurse practitioners (ARNPs), certified registered nurse anesthetists (CRNAs), licensed practical nurses (LPNs), nurse midwives and nurse practitioners regarding the possibility of representing them on short notice at a Board of Nursing hearing, or at a deposition related to a health care matter.

We Take Last Minute Cases.

Many law firms refuse to represent a client at a hearing unless given plenty of advance notice and preparation time. We, also, always prefer to have sufficient time to obtain documents, review files, interview witnesses, conduct research and prepare, in order to provide our clients the best possible representation. But we realize that in certain cases, the alternative is that the client either gets legal representation on little or no advance notice, or has to suffer the consequences of having no legal representation.

We may do this too, if we believe the case is too complex for us to represent you effectively on such short notice or that any legal representation would be completely futile. However, often this is not the situation.

Administrative Proceedings Can be Very Complex.

In some cases individuals responding to a disciplinary complaint may be fooled into believing that they can effectively represent themselves. They later find out that they have gotten into waters over their heads. Laypersons (meaning, in this case, nonlawyers) who are not aware of such complex matters as the Administrative Procedure Act, the Rules of Civil Procedure, the Rules of Evidence, the Florida Administrative Code (F.A.C.) Rules which the Board of Nursing and the Department of Health (DOH) have enacted, may quickly be perplexed and at wit’s end. Often the individual may only figure this out days or weeks before the final hearing.

The inexperienced individual, or even the inexperienced attorney, in these matters can fall into a number of procedural traps that damage an effective defense. This can be advising the individual to talk to the Department of Health (DOH) investigator, filing an unnecessary answer to an Administrative Complaint, forgetting or not knowing that the client’s right to be free of self-incrimination applies in this type of case and many others.

Procedural Mistakes Can Be Damaging To Your Defense.

Often you will find that merely having an experienced attorney to represent you at a hearing or Board meeting will assist you in avoiding mistakes that damage your case and assist you in preserving your rights for an appeal. In other cases it may even be possible to obtain a change in forum to obtain a better result. For example, many laypersons do not know that if you elect an informal hearing before the Board of Nursing, you have waived your right to prove you are innocent by contesting the facts alleged against you.

What few know or think of in the heat of the moment is that you can ask at the informal hearing before the Board of Nursing to contest the facts, to prove you are not guilty of the charges, and to have the hearing converted to a formal hearing. A formal hearing will be in front of a neutral Administrative Law Judge (ALJ), and you have a great many more procedural rights than you have at an informal hearing. However, we still recommend that you have an experienced health lawyer represent you at a formal hearing.

Available for Deposition Coverage.

In a number of cases, we have been requested to provide local deposition coverage in an area near to one of our offices, when an out-of-town lead counsel is unable to make the trip. If the issues involve health care, we are pleased to be able to assist whenever we can.

Often Professional Liability Insurance Will Pay Legal Fees for Deposition Coverage.

If you are a registered nurse, advanced registered nurse practitioner, certified registered nurse anesthetist, licensed practical nurse, nurse midwife or nurse practitioner who has a professional liability insurance policy, especially one with the larger national companies, these often provide legal coverage for depositions. This is primarily because the outcome of the deposition may include having you named as a defendant in a professional liability or negligence lawsuit or having disciplinary charges filed against you.

One of the first things you should do if you receive a subpoena or a notice of a deposition is to contact your professional liability insurance carrier and see if it will pay for an attorney to represent you. For example, Healthcare Providers Service Organization (HPSO), CPH & Associates, Nurses Service Organization (NSO) and many other malpractice insurance companies provide excellent deposition coverage.

The second thing you should do is to call an experienced attorney and schedule a consultation. Even if you cannot afford to retain the services of the attorney for the actual deposition, a consultation may assist you in properly preparing.

Consult With An Experienced Health Law Attorney.

We routinely provide deposition coverage to registered nurses (RNs), advanced registered nurse practitioners (ARNPs), certified registered nurse anesthetists (CRNAs), licensed practical nurses (LPNs), nurse midwives and nurse practitioners and other health professionals being deposed in criminal cases, negligence cases, civil cases or disciplinary cases.

The lawyers of The Health Law Firm are experienced in both formal and informal administrative hearings and in representing registered nurses (RNs), advanced registered nurse practitioners (ARNPs), certified registered nurse anesthetists (CRNAs), licensed practical nurses (LPNs), nurse midwives and nurse practitioners in investigations at Board of Nursing hearings. Call now or visit our website www.TheHealthLawFirm.com.

Comments?

Have you ever had an informal or formal hearing before the Board of Nursing? What was the experience like? Please leave any thoughtful comments below.

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

“The Health Law Firm” is a registered fictitious business name of George F. Indest III, P.A. – The Health Law Firm, a Florida professional service corporation, since 1999.

Copyright © 1996-2012 The Health Law Firm. All rights reserved.

At Board of Nursing Hearing, Each Aggravating Factor Must be Supported by “Competent Substantial Evidence” or Discipline Is reversible on Appeal

The foregoing case summary was prepared by Mary F. Smallwood, Esquire, of The Administrative Law Section of The Florida Bar.

The Department of Health, Board of Nursing (“Board”) filed charges against Fernandez for administering medication to a person who was not his patient. The facts demonstrated that Fernandez had visited a friend in the hospital and administered a drug prescribed for one of his home health care patients. After an administrative hearing, the Board found that five aggravating circumstances justified an upward departure in the penalty provided for the Board’s guidelines to license revocation.

On appeal, the court reversed. While it found support for four of the aggravating circumstances cited by the Board, it held that one of the circumstances was not supported by competent substantial evidence. Specifically, the Board had determined that Fernandez’ actions had caused damage to the patient. The court found the only support for this determination was testimony in the hearing transcript that the court characterized as “speculation.” Since the court concluded that it was unclear whether the Board would have revoked Fernandez’ license absent the determination of damage to the patient, it reversed in part and remanded for the Board to reconsider the penalty without the unsupported aggravating circumstance.

Source:

Fernandez v. Department of Health, 120 So. 3d 117 (Fla. 4th DCA 2013) (Opinion filed August 14, 2013).

About the Author: The foregoing case summary was prepared by Mary F. Smallwood, Esquire, of The Administrative Law Section of The Florida Bar. It originally appeared in the Administrative Law Section Newsletter, Col. 36, No. 2 (Dec. 2013).

Other Options Must Be Considered Before Emergency Suspension Order Will Be Upheld

The Department of Health (“DOH”) issued an emergency order suspending Burton’s license to practice nursing.

On appeal, the court quashed the emergency order. It held that DOH had failed to examine other disciplinary options available to it short of suspension. While recognizing DOH might be able to support license suspension as an appropriate penalty, it held that Burton was entitled to a hearing to contest the charges.

In the dissenting opinion, Judge Osterhaus cited numerous findings in the DOH order that supported suspension.

Source:

Burton v. Department of Health, 116 So. 3d 1285 (Fla. 1st DCA 2013) (Opinion filed July 24, 2013).

About the Author: The forgoing case summary was prepared by Mary F. Smallwood, Esquire, of the Administrative Law Section of The Florida Bar. It originally appeared in the Administrative Law Section newsletter, Vol. 35, No. 2 (Dec. 2013).

Florida Woman Uses Forged License to Practice Nursing

indest1By George F. Indest III, J.D., M.P.A., LL.M., Board Certified by The Florida Bar in Health Law

A Florida woman allegedly used a fake state nursing license to pose as a nurse and then treat patients at their homes, according to the Lake County, Florida, Sheriff’s Office. The woman is accused of treating patients at least seven times, but the sheriff’s office stated there may be more victims. The fake nurse was arrested on September 27, 2013. She faces charges of working as a nurse without a license and using a forged state document.

To read the Orlando Sentinel article, click here.

This is not the woman’s first time in trouble with law enforcement. Earlier this year she was allegedly arrested for running an unlicensed assisted living facility (ALF), according to WFTV, the ABC affiliate in Orlando, Florida.

Used Another Nurse’s License Number to Dupe Employer.

According to the Orlando Sentinel, the fake nurse was hired at TLC Home Care Facilities in Leesburg, Florida, in May 2013, after presenting the forged nurse license to her employer. Part of the phony nurse’s job was to treat patients at their home, including administering blood pressure checks and dispensing medications.

An audit of TLC Home Care facilities by the Department of Health (DOH) uncovered that the phony nurse was allegedly using the same nursing license number as a woman with a similar name. The legitimate nurse actually works at St. Petersburg General Hospital.

Fake Nurse Previously Arrested for Similar Charges.

In December 2012, the same woman was arrested for scheming to defraud and criminal use of personal information, according to WFTV.

Then in March 2013, the Florida Attorney General’s (AG) Medicaid Fraud Control Unit (MFCU) arrested her again for running an unlicensed ALF. According to WFTV, the woman billed residents for more than $55,000 worth of services in spite of the fact she was operating a facility without a state-required license.

Click here to watch WFTV’s report.

More Stories on Fake Physicians and Other Fraudulent Professionals to Come.

In the near future on this blog we will include additional articles on fake doctors and health professionals.

To see a recent blog a fake Florida pharmacist sentenced to prison, click here. To read a blog on a phony dentist in Miami, click here. You can also read the blog on a fake plastic surgeon in New York by clicking here.

Contact Health Law Attorneys Experienced in Representing Nurses.

The Health Law Firm’s attorneys routinely represent nurses in Department of Health (DOH) investigations, in appearances before the Board of Nursing in licensing matters and in many other legal matters. We represent nurses across the U.S., and throughout Florida.

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

Comments?

Do you think it is too easy to forge a health care professional’s license? Should the home health facility be punished for not doing a thorough background check? Please leave any thoughtful comments below.

Sources:

Comas, Martin. “Woman Used Forged Documents to Work as a Nurse, Deputies Say.” Orlando Sentinel. (September 27, 2013). From: http://www.orlandosentinel.com/news/local/breakingnews/os-woman-assumed-nurse-identity-20130927,0,395526.story

Hughes, Ryan. “Deputies: Woman Pretending to be Nurse has been in Trouble Before.” WFTV. (September 27, 2013). From: http://www.wftv.com/videos/news/deputies-woman-pretending-to-be-nurse-has-been-in/vCDXSX/
About the Author: George F. Indest III, J.D., M.P.A., LL.M., is Board Certified by The Florida Bar in Health Law. He is the President and Managing Partner of The Health Law Firm, which has a national practice. Its main office is in the Orlando, Florida, area. www.TheHealthLawFirm.com The Health Law Firm, 1101 Douglas Ave., Altamonte Springs, FL 32714, Phone: (407) 331-6620.

 

“The Health Law Firm” is a registered fictitious business name of George F. Indest III, P.A. – The Health Law Firm, a Florida professional service corporation, since 1999.
Copyright © 1996-2012 The Health Law Firm. All rights reserved.

The Collateral Effects of Discipline on Your Nursing License

indest1By George F. Indest, J.D., M.P.A., LL.M., Board Certified by The Florida Bar in Health Law

A. A case involving an arrest or a conviction involving alcohol abuse (DUI/public Intoxication) or drugs (possession, diversion, theft, trafficking) will probably result in an emergency suspension order (ESO) until the entire licensure case is complete.

B. Client may be required to be evaluated and probably enrolled in the Impaired Nurses Program (IPN) (for nurses only) or the Professionals Resource Network (PRN) (for all other licensed health professionals), which is usually at least a five year contract.

C. Action to revoke, suspend or take other action against the clinical privileges and medical staff membership of those licensed health professionals who may have such in a hospital, ambulatory surgical center, skilled nursing facility, or staff model HMO or clinic. This will usually be advance registered nurse practitioners (ARNPs) and certified registered nurse anesthetists.

D. Mandatory report to the National Practitioner Data Base (NPDB) (Note: Healthcare Integrity and Protection Data Bank or HIPDB recently folded into NPDB) which remains there for 50 years.

E. Must be reported to and included in the Department of Health (DOH) profile that is available to the public online (for those having one), and remains for at least 10 years.

F. Any other states or jurisdictions in which the client has a license will also initiate action against him or her in that jurisdiction. (Note: I have had two clients who had licenses in seven other states).

G. The Office of Inspector General (OIG) of Department of Health and Human Services (HHS) will take action to exclude the provider from the Medicare Program. If this occurs (and most of these offenses require mandatory exclusion) the provider will be placed on the List of Excluded Individuals and Entities (LEIE) maintained by the HHS OIG.

H. If the above occurs, the provider is also automatically “debarred” or prohibited from participating in any capacity in any federal contracting and is placed on the U.S. General Services Administration’s (GSA’s) debarment list.

I. The U.S. Drug Enforcement Administration (DEA) will act to revoke the professional’s DEA registration if he or she has one.

J. The certified health professional’s certify organization will act to revoke his or her certification.

K. Third party payors (health insurance companies, HMOs, etc.) will terminate the professional’s contract or panel membership with that organization.

L. Any profile maintained by a national organization or federation (e.g., American Medical Association physician profile or Federation of State Boards of Physical Therapy profile) will include the conviction.

M. Regardless of any of the above, any facility licensed by AHCA (hospitals, skilled nursing facilities (SNFs), public health clinics, public health clinics, group homes for the developmentally disabled, etc.) that are required to perform background screenings on their employees will result in AHCA notifying the facility and the professional that he or she is disqualified from employment.
Contact Health Law Attorneys Experienced in Representing Nurses.

The Health Law Firm’s attorneys routinely represent nurses in 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.

“The Health Law Firm” is a registered fictitious business name of George F. Indest III, P.A. – The Health Law Firm, a Florida professional service corporation, since 1999.
Copyright © 1996-2012 The Health Law Firm. All rights reserved.

What Nurses Need to Know about Florida Law and HIV Testing

indest9By George F. Indest III, J.D., M.P.A., LL.M., Board Certified by The Florida Bar in Health Law

Section 381.004, Florida Statutes, provides for an increased level of protection of medical records that contain human immunodeficiency virus (HIV) test results. The super confidentiality requirements imposed by Florida law are viewed as the precautions which must be taken both before an HIV test can be performed and after the HIV test is performed to ensure patient confidentiality.

Pre-Test Requirements.

The administration of an HIV test requires the informed consent of the patient for whom the HIV results will be obtained. No person in Florida may order an HIV test without first obtaining the informed consent of the person upon whom the test is being performed. Section 381.004(3)(a), Florida Statutes. Consent need not be in writing if the medical record documents that consent was given. Section 381.004(3)(a), Florida Statutes. Informed consent must be preceded by an explanation of the right to confidential treatment of information identifying the subject of the test and the results of the test to the extent provided by law. Information must also be provided on the fact that a positive HIV test result will be reported to the county health department with sufficient information to identify the test subject and on the availability and location of sites at which anonymous testing is performed.

Post-Test Requirements.

Notification – Once an HIV test has been administered, there are a number of statutorily prescribed steps that a health care professional must follow. All reasonable efforts must be made to notify the test subject of his or her test result. Section 381.004(3)(c), Florida Statutes. Notification of a person with a positive test result will include information on the availability of appropriate medical and support services, the importance of notifying partners who may have been exposed, and preventing the transmission of HIV. When testing occurs in a hospital emergency department, detention facility, or other facility and the test subject has been released before being notified of positive test results, informing the county health department for that department to notify the test subject fulfills this responsibility. No test result shall be determined as positive, and no positive test result shall be revealed to any person, without corroborating or confirmatory tests being conducted except in the following situations:

1. Preliminary test results may be released to licensed physicians or the

medical or nonmedical personnel subject to the significant exposure for purposes of
subparagraphs (3)(h)10., 11., and 12.

2. Preliminary test results may be released to health care providers and to the
person tested when decisions about medical care or treatment of, or recommendation to, the person tested and, in the case of an intrapartum or postpartum woman, when care, treatment, or recommendations regarding her newborn, cannot await the results of confirmatory testing. Positive preliminary HIV test results shall not be characterized to the patient as a diagnosis of HIV infection. Justification for the use of preliminary test results must be documented in the medical record by the health care provider who ordered the test. This subparagraph does not authorize the release of preliminary test results for the purpose of routine identification of HIV-infected individuals or when HIV testing is incidental to the preliminary diagnosis or care of a patient. Corroborating or confirmatory testing must be conducted as followup to a positive preliminary test. Results shall be communicated to the patient according to statute regardless of the outcome. Except as provided in this section, test results are confidential and exempt from the provisions of Section. 119.07(1), Florida Statutes. Section 381.004(3)(d), Florida Statutes.

Confidentiality.

Once an HIV test has been performed and the results have been obtained, confidentiality must be preserved. The identity of any person upon whom a test has been performed and test results must be held confidential. Section 381.004(3)(e), Florida Statutes. No person who has obtained or has knowledge of an HIV test result may disclose or be compelled to disclose the identity of any person upon whom a test is performed, or the results of such a test in a manner which permits identification of the subject of the test,
except for the following reasons:

1. Patient Release. Consent for disclosure by the subject may be obtained in
a “legally effective release.” Section 381.004(3)(e)(1-2), Florida Statutes.

2. Authorized agents or employees of providers and facilities. Personnel
within a single facility or provider are authorized to disclose to each other
on a “need to know” basis.

3. Health care consultation. Health care providers that are not employees of
the same provider or facility may disclose HIV test results to each other
without the subject’s consent, provided they are involved in the care or
treatment of the test subject and the consultation is for the purpose of the
patient’s diagnosis or treatment. 381.004(3)(e)(4), Florida Statutes.

4. Department of Health. The Department may share HIV test results “in
accordance with rules for reporting and controlling the spread of disease,
as permitted by state law.” 381.004(3)(e)(5), Florida Statutes.

5. Transfer of body parts. Health care facilities and providers who transfer
body parts and semen, for the purposes of artificial insemination, may
disclose HIV test results to each other. 381.0041, Florida Statutes.

6. Health facility staff committees may disclose HIV test results for the
purposes of conducting program monitoring, program evaluation, or
service reviews pursuant to Chapters 395 and 766, Florida Statutes.

7. Research. HIV test results may be disclosed to authorized medical and
epidemiological researchers who are then prohibited from disclosing any
identifying characteristics or information regarding test subjects. Section
381.004(3)(e)(8), Florida Statutes.

8. Court Orders. Subpoenas are not sufficient under Florida law for the
release of HIV test results. A court order must be obtained and this
process is not easily accomplished. A “compelling need” must be
demonstrated by the individual seeking the results and the court must
balance this need against the test subject’s privacy rights as well as
public’s interests in privacy.

9. Workers’ Compensation. An administrative law judge of compensation
claims of the Division of Workers’ Compensation may authorize
disclosure of HIV test results, but only upon a finding that the person
seeking the test results has demonstrated a compelling need for the results.

10. Custodians of Children. Under Section 381.004(3)(e)(11), Florida
Statutes, there are three classes of persons allowed access to HIV test
results:

a. Department personnel and other employees “directly
involved in the placement, care, control or custody” of
the tested child who demonstrate a need to know;

b. Adoptive parents of the tested subject; or

c. An adult custodian, relative or other person responsible
for the child’s welfare if the parent or legal guardian
cannot be reasonably located and informed of the test
result.

Oral Disclosure.

Oral disclosure of HIV test results shall be accompanied by oral notice and followed by a written notice within 10 days. This written notice shall include the following statement: “This information has been disclosed to you from records whose confidentiality is protected by state law. State law prohibits you from making any further disclosure of such information without the specific written consent of the person to whom such information pertains, or as otherwise permitted by state law. A general authorization for the release of medical or other information is NOT sufficient for this purpose.” Section 381.004(3)(f).

Penalties.

Any violation of this section by a facility or a licensed health care provider is grounds for
disciplinary action contained in the facility’s or professional’s respective licensing chapter. Any person who violates the confidentiality provisions commits a misdemeanor of the first degree. Any person who obtains information that identifies an individual who has a sexually transmissible disease, including human immunodeficiency virus or acquired immunodeficiency syndrome, who knew or should have known the nature of the information and maliciously, or for monetary gain, disseminates this information or otherwise makes this information known to any other person, except by providing it either to a physician or to a nurse employed by the department or to a law enforcement agency, commits a felony of the third degree. Section 381.004(6), Florida Statutes

Conclusion.

The use of tests designed to reveal a condition indicative of human immunodeficiency virus infection is a valuable tool in protecting the public health. Many members of the public are deterred from seeking such testing because they misunderstand the nature of the test or fear that test results will be disclosed without their consent. The laws imposed on the super confidentiality of HIV testing are intended to benefit the public health and the public will be benefited by the nursing profession, when those nurses serve by facilitating informed, voluntary, and confidential use of tests designed to detect human immunodeficiency virus infection.

Contact Health Law Attorneys Experienced in Representing Nurses.

The Health Law Firm’s attorneys routinely represent nurses in Department of Health (DOH) investigations, Department of Justice (DOJ) investigations, in appearances before the Board of Nursing in licensing matters and in many other legal matters. We represent nurses across the U.S., and throughout Florida.

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

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

“The Health Law Firm” is a registered fictitious business name of George F. Indest III, P.A. – The Health Law Firm, a Florida professional service corporation, since 1999.

Copyright © 1996-2012 The Health Law Firm. All rights reserved.

Overcoming License Suspension and Revocation Pending Appeal

By: Lance O. Leider, J.D.

If you are a doctor, nurse, dentist, psychologist, pharmacist, massage therapist or other licensed health professional whose license has been recently revoked or suspended, there may still be hope. Ordinarily, you must immediately stop practicing or you risk being prosecuted for unlicensed practice, a felony. Although this blog deals with Florida law, similar relief may be available in other states, too.

One of the hardest things about having a license suspended or revoked is that it immediately cuts off the licensee’s sole source of income. If you have a thriving practice, this will usually destroy any value your business has. Without income, paying your bills will be a challenge, much less the cost to fight the legal action or to appeal.

Even if you appeal the decision and win the appeal, you will be out of practice for many months, often more than a year, before your license is reinstated. You still have all the lost income and business, and you never get this time and money back.

Fortunately, Florida law provides an avenue for temporary relief from the adverse decision, so that you may retain your license and practice your profession pending appeal of your case. This legal process is called a writ of supersedeas.

What is Supersedeas Relief?

Supersedeas relief is a form of relief granted by a reviewing court (court of appeal) that suspends the enforcement of the judgement of the lower court (or agency) while the underlying issues are decided on appeal. What this means is that you can have the action to revoke or suspend your license put on hold while you appeal the decision of the Department of Health (DOH).

This relief is authorized in two separate places in Florida law: Section 120.68(3), Florida Statutes, and Rule 9.190(e)(2)(C), Florida Rules of Appellate Procedure. Both of these provisions state that a reviewing court can grant a stay of enforcement of the revocation or suspension of a license pending review.

The relief is not automatic, however. Both provisions specifically prevent supersedeas from being granted if the licensee poses a probable threat to the health, safety or welfare of the state. Fortunately, it is the burden of the agency whose order is being reviewed to prove that there is a danger to the public.

Additionally, the Appellate Rule permits you to ask for expedited review. (Which of course is recommended because you want to be back to work as quickly as possible, right?) This means that the agency only has ten (10) days to file its opposition. This shortened time period may make it difficult for an overworked government attorney to file on time or to produce quality opposition.

Steps to Seeking Supersedeas Relief.

1. File an appeal of the Final Order revoking or suspending your license with the appropriate agency and a copy to the appellate court. Be sure to follow all appellate rules and instructions.

2. File a Petition for Expedited Supersedeas Relief with the appellate court at the same time.

3. If you receive a favorable ruling from the court, deliver that order to the licensing agency (in this case, the DOH) and request that your license be reinstated immediately.

Other Considerations.

It is important to note that this form of relief will not make the underlying action disappear. Your return to practice will only be temporary, unless you win the appeal. You will still have to show the licensing agency did something contrary to law when it imposed the discipline in order for the appellate court to overturn the decision. This is not often an easy task. Furthermore, the law only permits a thirty (30) day window in which to appeal the agency’s decision, after which your rights are lost and you are very likely stuck with the decision.

Appeals Are Very Technical and Require a Thorough, Specialized Knowledge of the Law.

What few people understand is that appeals are very technical and have complex, procedural rules that you must follow. An appeal of an agency final order is not the place to argue about the facts of your case or to try to prove different facts.

An appeal is all about the law and the court cases that have interpreted the law. Unless the agency (in this case your board) made a legal error and violated the law, you won’t win.

For an appeal, a person needs an attorney. To prevail on an appeal, you must have a detailed knowledge of the correct, relevant court cases and you must be able to argue these in the proper form in legal briefs.

There are many other procedural steps you must follow in an appeal that only a good appellate attorney will know. To attempt to do this yourself is not advisable.

Contact Health Law Attorneys With Experience Handling Licensing Issues.

If you have had a license suspended or revoked, or are facing imminent action against your license, it is imperative that you contact an experienced healthcare attorney to assist you in defending your career. Remember, your license is your livelihood, it is not recommended that you attempt to pursue these matters without the assistance of an attorney.

The Health Law Firm routinely represents physicians, dentists, nurses, medical groups, clinics, and other healthcare providers in personal and facility licensing issues.

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: Lance O. Leider is an attorney with The Health Law Firm, which has a national practice. Its main office is in the Orlando, Florida, area. www.TheHealthLawFirm.com The Health Law Firm, 1101 Douglas Avenue, Altamonte Springs, Florida 32714, Phone: (407) 331-6620.

 

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.

The 25 Biggest Mistakes Nurses Make After Being Notified of a Department of Health Complaint

By Lance Leider, J.D.

The investigation of a complaint which could lead to the revocation of a nurse’s license to practice and the assessment of tens of thousands of dollars in fines, usually starts with a simple letter from the Department of Health (DOH). This is a very serious legal matter, and it should be treated as such by the nurse who receives it. Yet, in many cases, attorneys are consulted by nurses after the entire investigation is over, and they have attempted to represent themselves throughout the case. Often, the mistakes that have been made severely compromise an attorney’s ability to achieve a favorable result for the nurse.

These are the 25 biggest mistakes we see in the nursing cases we are called upon to defend after a DOH investigation has been initiated:

1. Failing to keep a current, valid address on file with the DOH (as required by law), which may seriously delay the receipt of the Uniform Complaint (notice of investigation), letters, and other important correspondence related to the investigation.

2. Contacting the DOH investigator and providing him/her an oral statement or oral interview. (Note: There is no legal requirement to do this.)

3. Making a written statement in response to the “invitation” extended by the DOH investigator to do so. (Note: There is no legal requirement to do this.)

4. Failing to carefully review the complaint to make sure it has been sent to the correct nurse. (Note: Check name and license number).

5. Failing to ascertain whether or not the investigation is on the “Fast Track” which may then result in an emergency suspension order (ESO) suspending the nurse’s license until all proceedings are concluded. (Note: This will usually be the case if there are allegations regarding drug abuse, alcohol abuse, sexual contact with a patient, mental health issues, or failure to comply with PRN instructions.)

6. Providing a copy of the nurse’s curriculum vitae (CV) or resume to the investigator because the investigator requested them to do so. (Note: There is no legal requirement to do this.)

7. Believing that if they “just explain it,” the investigation will be closed and the case dropped.

8. Failing to submit a timely objection to a DOH subpoena when there are valid grounds to do so.

9. Failing to forward a complete copy of the patient medical record when subpoenaed by the DOH investigator as part of the investigation, when no objection is going to be filed.

10. Delegating the task of providing a complete copy of the patient medical record to office staff, resulting in an incomplete or partial copy being provided.

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

12. Believing that the investigator has knowledge or experience in hospital procedures, medical procedures or the health care matters or procedures being investigated.

13. Believing that the investigator is merely attempting to ascertain the truth of the matter and this will result in the matter being dismissed.

14. Failing to check to see if their medical malpractice insurance carrier will pay the legal fees to defend them in this investigation.

15. Talking to DOH investigators, staff or attorneys, in the mistaken belief that they are capable of doing so without providing information that can and will be used against them.

16. Believing that because they haven’t heard anything for six months or more the matter has “gone away.” The matter does not ever just go away.

17. Failing to submit a written request to the investigator at the beginning of the investigation for a copy of the complete investigation report and file and then following up with additional requests until it is received.

18. Failing to wisely use the time while the investigation is proceeding to interview witnesses, obtain witness statements, conduct research, obtain experts, and perform other tasks that may assist defending the case.

19. Failing to exercise the right of submitting documents, statements, and expert opinions to rebut the findings made in the investigation report before the case is submitted to the Probable Cause Panel of your licensing board for a decision.

20. Taking legal advice from their colleagues regarding what they should do (or not do) in defending themselves in the investigation.

21. Retaining “consultants” or other non-lawyer personnel to represent them.

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

23. Attempting to defend themselves.

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

25. Failing to immediately retain the services of a health care attorney who is experienced in such matters to represent them, to communicate with the DOH investigator for them, and to prepare and submit materials to the Probable Cause Panel.

Bonus Point: 26. Communicating with the Department of Health about the pending case.

Not every case will require submission of materials to the Probable Cause Panel after the investigation is received and reviewed. There will be a few where the allegations made are not “legally sufficient” and do not constitute an offense for which the nurse may be disciplined.

In other cases, an experienced health care attorney may be successful in obtaining a commitment from the DOH attorney to recommend a dismissal to the Probable Cause Panel. In other cases (usually the most serious ones), for tactical reasons, the experienced health care attorney may recommend that you waive your right to have the case submitted to the Probable Cause Panel and that you proceed directly to an administrative hearing. The key to a successful outcome in all of these cases is to obtain the assistance of a health care lawyer who is experienced in appearing before the Board of Medicine in such cases and does so on a regular basis.

Contact Health Law Attorneys Experienced with Department of Health Investigations of Nurses.  

The attorneys of The Health Law Firm provide legal representation to nurses and nurse practitioners in Department of Health (DOH) investigations, Drug Enforcement Administration (DEA) investigations, FBI 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: Lance O. Leider, J.D. is an attorney with The Health Law Firm, which has a national practice. Its main office is in the Orlando, Florida, area. www.TheHealthLawFirm.com The Health Law Firm, 1101 Douglas Ave., Altamonte Springs, FL 32714, Phone: (407) 331-6620.