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Florida License Defense FAQs – Physicians, Nurses, & Pharmacists

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FLORIDA LICENSE DEFENSE FAQs – HEALTHCARE PROFESSIONALS

This Florida healthcare professional license defense FAQ is only intended as an informative guide and is not legal advice. The details of Florida Department of Health investigations and hearings are different and require independent review and analysis. At Cantrell Zwetsch, our Florida healthcare professional license defense attorneys represent all healthcare professionals regulated by the Florida Department of Health.

This FAQ is applicable to all regulated Florida healthcare professionals, including: Physicians, Nurses, Nursing Home Administrators, Pharmacists, Dentists, Chiropractors, Opticians, Optometrists, Orthotists, Osteopathic Practitioners, Physical Therapists, Athletic Trainers, Speech Pathologists, Social Workers, Marriage and Family Therapists, and Mental Health Counselors.

1. I received a letter from the Florida Department of Health regarding an investigation. What should I do?

It is important that you promptly attend to a letter from the Florida Department of Health upon its receipt. Typically, these letters include a deadline for response, and it is important that this deadline be taken seriously. A common mistake healthcare providers make is to either ignore the letter or not view it as a serious matter and fail to provide an adequate response. Failure to promptly respond to the Department’s letter, or not respond at all, may lead to sanctions imposed against the healthcare provider, including the filing of a formal Administrative Complaint. An experienced licensing defense attorney can assist in preparing a comprehensive, prompt response in compliance with the Department’s deadline.

2. What is the process for Florida Department of Heath investigations?

The Florida Department of Health begins an investigation when it receives a complaint about a healthcare provider. This complaint can come from a patient, co-worker, employer, or self-reporting practitioner. The Department of Health will then assign the case to a non-attorney investigator, who will then gather evidence, review relevant files, records, and documents, and interview possible witnesses. During this initial investigation, the practitioner will often receive an investigative letter, which informs the practitioner that the Department of Health received a complaint against the practitioner’s license. The letter will inform the practitioner he/she has a right to file a written response within a specified timeframe and will often invite the practitioner to submit a resume and coordinate an interview with the Department investigator. This letter often briefly informs the practitioner of the incident or potential violation being investigated. It is imperative to note that the practitioner is not required to respond, submit a resume, or submit an interview under law at this time.

Once the investigator completes his or her investigation, they prepare and submit an investigative report to the Probable Cause Panel of the regulatory board overseeing the practitioner’s practice area, i.e., the Florida Board of Medicine (for physicians), the Florida Board of Nursing (for nurses), or the Florida Board of Pharmacy (for pharmacists).

The Florida Department of Health’s report will often contain its investigative findings and recommendations concerning the existence of probable cause that the practitioner committed an offense.  The regulatory board’s Probable Cause Panel will receive the report and make a determination of probable cause by majority vote. If no probable cause is found, the case will be dismissed. If probable cause is found, the Probable Cause Panel can do one of the following: (1) issue a recommendation that the Department of Health file a formal complaint against the practitioner (called an Administrative Complaint) or (2) issue a letter of guidance in lieu of formal complaint.

If the Department of Health files an Administrative Complaint, the practitioner is served with a copy and is often provided with an Election of Rights, which will give the practitioner three options on how to proceed: (1) settlement negotiations with the Department of Health; (2) an informal hearing; or (3) a formal hearing. The practitioner must submit its response within 21 days of service.

Once there has been a final hearing or negotiations have been accepted by the Department of Health, the Department will issue a Final Order disposing the case.

3. What factors do the Florida Department of Health consider in determining discipline?

Florida Administrative Law Code 64B-8 lists factors the Florida Department of Health considers when determining discipline against a provider:

  • The danger to the public;
  • Previous disciplinary action against the licensee in this or any other jurisdiction;
  • The length of time the licensee has practiced;
  • The actual damage, physical or otherwise, caused by the violation;
  • The deterrent effect of the penalty imposed;
  • Any efforts at rehabilitation;
  • Attempts by the licensee to correct or stop violations, or refusal by the licensee to correct or stop violations;
  • Cost of treatment;
  • Financial hardship; and
  • Cost of disciplinary proceedings.

4. Who can file a complaint with the Department of Health?

Patients, co-workers, employers, supervisors, or other individuals that may have knowledge of a practitioner’s possible offense may file a complaint with the Department of Health. Additional sources of complaints include hospitals, ambulatory surgery centers, or other licensed facilities mandated by law to report certain internal risk management findings to the Department of Health. These complaints may be anonymous or filed by a confidential informant.

The practitioner may also self-report an incident with the Department of Health, which can result in the initiation of an investigation against the practitioner. Complaints can be filed against any healthcare practitioner or facility licensed or regulated by the Department of Health, including but not limited to: M.D.s and D.O.s, nurses, pharmacists, physician assistants, and advanced registered nurse practitioners.

5. Should I an incident to the Florida Department of Health?

Healthcare practitioners are required to report any criminal activity they are involved in after they’ve received their medical licenses. Practitioners can self-report by visiting the Complaint Portal on the Florida Department of Health’s website.

6. What is the deadline for someone filing a complaint with the Department of Health?

Pursuant to Florida Statute 456.073, the statute of limitations for filing an administrative complaint against a practitioner is six (6) years from the date of the incident or occurrence giving rise to the complaint or licensee. However, there are some exceptions to this limitation. If the incident or occurrence at issue involves a criminal action, diversion of controlled substances, sexual misconduct, or impairment by the medical professional, this subsection does not apply to bar initiation of an investigation or filing of an administrative complaint beyond the 6-year timeframe.

Additionally, in those cases covered by that subsection in which it can be shown that fraud, concealment, or intentional misrepresentation of fact prevented the discovery of the violation of law, the period of limitations is extended, but shall not exceed 12 years after the time of incident or occurrence at issue.

7. What type of complaints are generally not investigated by the Department of Health?

Generally, the following complaints will not be investigated by the Florida Department of Health:

  • Fee disputes (i.e., refunds, missed appointments)
  • Billing disputes (the Department notes it is the responsibility of the consumer to know the terms of their insurance coverage and approved providers)
  • Personality conflicts
  • Complaints of bedside manner or rudeness of practitioners

8. Is a complaint, investigation process, or disciplinary hearing by the Department of Health confidential?

A Florida Department of Health investigation remains confidential and exempt from public disclosure until after the Department files an Administrative Complaint against the practitioner. Once the Administrative Complaint is filed, the investigation becomes public and remains on the practitioner’s public record. If an Administrative Complaint is not filed, the details of the investigation leading up to the submission to the regulatory board’s Probable Cause Panel remains confidential. Until there is a suspension or other final action taken against the practitioner, there is no indication on his/her license or in their licensure file that they are being investigated.

9. Should I cooperate with a Department of Health investigation?

Generally, it is recommended that a practitioner cooperate with the Florida Department of Health in getting his or her case resolved. However, the practitioner should carefully examine any requests for documents from the Department of Health to determine if it the documents requested are relevant and within the scope of the investigation. Additionally, practitioners should ensure any production of documents complies with applicable privacy and healthcare regulations, such as HIPAA. It is highly recommended that the practitioner engage the help of an experienced attorney prior to answering a request for documents, response, or interview from the Department of Health.

10. What happens at a Florida Department of Health disciplinary hearing?

When an Administrative Complaint is served on a practitioner, the Department of Health also provides an Election of Rights form, which allows the practitioner to proceed resolving his or her case in a variety of ways. Two of those ways are an informal hearing and a formal hearing.

Informal hearings are hearings before the regulatory board where no issues of material fact are determined. Many practitioners believe that because this process is called an “informal” hearing, there will be less legal technicalities, they will be able to argue the merits of their case at a fair hearing, and there will be less technical procedure. This is incorrect and is a misconception that can be detrimental to the practitioner’s outcome. Practitioners are essentially pleading “guilty” during informal hearings, as they are not allowed to introduce evidence demonstrating their innocence or contest the Department’s charges. The primary purpose of the informal hearing is not to fight the Department’s charges, but rather to determine the discipline the practitioner will receive. Because of the limited appeal right, this option is often not recommended without speaking with an attorney first.

Formal hearings, on the other hand, occur where the practitioner contests the Department’s charges. The case will be forwarded to an Administrative Law Judge at the Florida Department of Administrative Hearings. Each party can present evidence, call witnesses, and present legal argument in support of his or her position, similar to a criminal trial. The practitioner may be called to testify, as well. The Administrative Law Judge will then prepare a recommended order, which will subsequently be sent to the Board. The Board will then enter a final written Order.

11. What discipline can the Florida Department of Health or Board impose?

If a practitioner is disciplined, the Florida Department of Health or governing regulatory board may impose or one more of the following actions:

  • Reprimand
  • Fine
  • Restriction of practice
  • Continuing education
  • Citation
  • Probation
  • Suspension
  • Revocation of license

12. Can I appeal an adverse decision by the Florida Department of Health?

Yes. A practitioner has thirty (30) days from the entry of a Final Order to appeal the Board’s decision. Appeals of this nature are heard before the District Court of Appeal for the relevant jurisdiction.

13. I’ve been disciplined in another state. Am I required to report it to the Board?

Generally, yes. Florida Statute 458.331(1)(kk)  requires physicians to report to the Florida Board of Medicine, in writing, within 30 days if action is taken against one’s license in another state, territory, or country. Similar requirements apply to other healthcare professionals under Florida Statute 456.072

14. Should I hire an attorney for a Florida Department of Health investigation?

It is highly recommended that you hire an attorney to assist you through a Florida Department of Health investigation. It is important to remember the Department’s investigation is penal in nature, and therefore the practitioner retains the same constitutional rights as they would in criminal cases. While this means you cannot be required to make a statement to the Department of Health investigator, it also means that any statement you do make, no matter how insignificant it seems, can and will be used against you by the Department of Health. An experienced attorney can assist in determining how to present your case to the Department of Health investigator.

15. Does malpractice insurance pay for defense against Florida Department of Health?

Each practitioner’s insurance is different, but sometimes malpractice insurance providers will pay for the practitioner’s defense. Malpractice insurance may also assist paying for Department of Health investigation defense. To determine if you are eligible for assistance, you should contact your malpractice insurance directly for more details. If you do not have insurance, it is recommended you immediately attempt to locate and retain the services of a qualified, experienced attorney.

16. Where can I find more information?

Call us. We are glad to have an initial consultation at no cost. The Florida Department of Health also posts information on its website regarding the compliant, investigation, hearing, and discipline process, including an FAQ section.

Finally, you can find information specific to each type of regulated healthcare professional under their respective board website, which are listed here.

About Cantrell Zwetsch

Cantrell Zwetsch is a business dispute boutique that focuses on representing professionals and entities in the Florida healthcare industry. Each of our attorneys have top-tier credentials and substantial experience. If you have any questions, contact us at 1-800-698-6650.

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Cantrell Zwetsch is a litigation boutique that focuses its practice on non-compete and unfair competition disputes, employment law, and business disputes throughout Florida and Georgia, including the cities of St. Petersburg, Tampa, Clearwater, Orlando, Sarasota, Fort Myers, West Palm Beach, Miami, Fort Lauderdale, Jacksonville, Key West, Pensacola, Tallahassee, Gainesville, Savannah, Macon, Augusta, and Atlanta.

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